RENDERED: JULY 12, 2024; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0984-MR

MAXWELL RIGDON AND 

MARTINA RIGDON APPELLANTS 

v. 

APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE DAWN LONNEMAN BLAIR, JUDGE

ACTION NO. 22-CI-01183

JEFFREY ENGLAND AND BRENDA 

ENGLAND APPELLEES 

OPINION

REVERSING 

AND REMANDING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES.

COMBS, JUDGE: This appeal involves a petition for de facto custodianship. The 

Appellants, Maxwell Rigdon and Martina Ridgon, are married and have four 

children between them -- three biological daughters and Martina’s son from a 

previous relationship. This matter concerns the Rigdons’ two younger daughters, 
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A.P.R., born in 2015; and A.R.M.R., born in 2016. The Appellees are Brenda 

England and Jeffrey England, the paternal grandmother and step-grandfather. 

 The Englands filed a petition to be declared de facto custodians of the 

two girls. The family court determined that the Englands qualified as de facto

custodians and subsequently awarded the Englands and the Rigdons joint legal 

custody of A.P.R. and A.R.M.R. On appeal, the Rigdons contend that the trial 

court erred in determining that the Englands qualified as de facto custodians. After 

our review, we reverse and remand.

A person claiming to be a de facto custodian may petition a court for 

legal custody of a child. KRS1 405.020(3). De facto custodian status is governed 

by KRS 403.270. “The statute sets forth a number of requirements for de facto

custodian status: (a) proof by clear and convincing evidence; (b) primary 

caregiver; (c) financial supporter; and (d) residence for a requisite period of time 

depending on the age of the child . . . .” Cherry v. Carroll, 507 S.W.3d 23, 27 (Ky. 

App. 2016). “Granting someone de facto custodian status gives that person ‘the 

same standing in custody matters that is given to each parent.’ KRS 

403.270(1)(b).” Meinders v. Middleton, 572 S.W.3d 52, 57 (Ky. 2019).

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 

1 Kentucky Revised Statutes.
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parent has abdicated the role of primary caregiver and 

financial supporter of the child for the required period of 

time. London v. Collins, 242 S.W.3d 351 (Ky. App.

2007). In other words, “one must literally stand in the 

place of the natural parent to qualify as a de facto

custodian.” Consalvi v. Cawood, 63 S.W.3d 195, 198 

(Ky. App. 2001), abrogated on other grounds by Moore

[v. Asente, 110 S.W.3d 336 (Ky. 2003)].

. . .

[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. Boone v. Ballinger, 228 

S.W.3d 1 (Ky. App. 2007).

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

With that precedential commentary in mind, we turn to the matter 

before us. On August 29, 2022, Brenda England and Jeffrey England filed their

petition for de facto custody in Hardin Circuit Court, Family Division, seeking sole 

custody. The petition states that the Englands are the paternal grandparents of 

A.P.R. (born in 2015) and A.R.M.R. (born in 2016), whose natural parents are 

Maxwell and Martina Rigdon. The Englands alleged that the children had resided 

with them “for the aggregate period of one (1) year or more . . . within the last two 

(2) years.” The Englands further alleged that “pursuant to KRS 403.270(1), . . .

they have been the primary caregivers specifically for, and financial supporters of, 

the minor children herein for the necessary statutory period, specifically for the 

aggregate period of at least one (1) year of the past two (2) years . . . .”
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On September 13, 2022, the family court conducted a hearing on the 

de facto petition. On September 21, 2022, the court entered Findings of Fact, 

Conclusions of Law, and Order Regarding De facto Custody as follows in relevant 

part:

The Respondent, Maxwell Rigdon, is the son of 

Petitioner, Brenda England. The Respondents have four 

children living in their home at the present time. . . . Only 

two of the Rigdon’s [sic] children are the subject matter of 

this action, namely A.P.R. and A.R.M.R. The Petitioners 

are the grandparents to A.P.R. and A.R.M.R. . . .

Petitioners . . . allege to be the primary caregivers and 

financial supporters of these two children and request to 

be declared de facto custodians of A.P.R. and A.R.M.R.

. . .

A.P.R. and A.R.M.R. are both older than three years old. 

Thus, the requisite time period is a one year period. As 

[KRS 403.270(1)(a)] now states, this one year period can 

be an aggregate of time which has occurred within the 

last two years before the petition was filed. The petition 

was filed on August 29, 2022, therefore, the Court is 

being asked to determine if the [Englands] qualify as 

de facto custodians for the time period of August 29, 

2020 to August 29, 2022. The standard of proof is one 

of clear and convincing evidence.

The Respondents [Parents] argue that . . . the 

ability to aggregate time should not apply prior to June 

29, 2021, as the statute in effect up until that time did not 

contain the aggregate language. 

(Emphasis added.)
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Citing KRS 446.080 and general rules of statutory construction, the 

family court stated:

In the very text of the statute, the legislature 

intended to utilize the two years prior to the passage of 

this statute as the time frame within which to qualify as a 

de facto custodian. Thus, the statute on its very face 

clearly evidences the legislature’s intent to include the 

two years prior to the passage of the statute and the 

aggregate period within that two years.

The family court found that the Englands had the children for the following time 

periods -- based upon calendars which Ms. England had kept: 

September 2020-December 2020: 110 nights

2021: 333 nights 

2022: 204 nights

The family court found Ms. England’s calendars reliable because they 

were “kept in real time.” By contrast, Ms. Rigdon, the children’s mother, had 

attempted to recreate her calendars in retrospect. The family court explained that 

“the ultimate question at hand is whether the Rigdons abdicated their role as 

primary caregivers and financial supporter of the children.” The family court 

concluded that the Englands had proven that they had been both the primary 

caregiver and primary financial supporters for the children for an aggregate period 

of time of one year or more prior to the filing of this petition. The family court 

ordered that the Englands be adjudged de facto custodians of A.P.R. and A.R.M.R. 
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On August 4, 2023, following a final hearing, the family court entered 

Findings of Fact, Conclusions of Law, and Judgment, reciting as follows:

This Court has previously entered an order 

determining that the [Englands] qualify as de facto

custodians of the two children, A.P.R. and A.R.M.R. 

The findings of fact contained within that order are 

hereby incorporated herein on the issue of de facto

custody. Further, the Court did not hear any additional 

evidence during the final hearing which would have 

contradicted this prior ruling . . . .

The family court ordered that “[t]he Petitioners, Jeffrey and Brenda 

England, and the Respondents, Maxwell and Martina Rigdon, are hereby awarded 

joint legal custody of the two children, A.P.R. and A.R.M.R.”

The Ridgons appeal. They contend that the trial court erred when it 

determined from the applicable law and evidence that the Englands qualified as de 

facto custodians of the two children. Specifically, the Rigdons argue: (1) that 

KRS 403.270, as amended, was not made retroactive; thus, any time that the 

children resided with the Englands prior to the effective date of the statute’s 

amendment on June 29, 2021, cannot be aggregated with time accruing after that 

date; and (2) that the de facto custodian statute is not applicable because during the 

period of time that the children were with the Englands, they were still being coparented by their natural parents, citing Burgess v. Chase, 629 S.W.3d 826 (Ky. 

App. 2021) and Boone v. Ballinger, 228 S.W.3d 1 (Ky. App. 2007) (cases holding 

that even if a nonparent provides care and/or financial support for a child, if it is in 
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conjunction with a natural parent, the nonparent will not qualify as a de facto

custodian).

“The construction and application of statutes is a matter of law and 

may be reviewed de novo.” Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth 

Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). 

Amended effective June 29, 2021, KRS 403.270(1)(a) provides in 

relevant part:

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 one (1) year

or more if the child is three (3) years of age or 

older . . . .

(Emphasis added.) Before the statute was amended to allow aggregate periods of 

time, “the period of time required to qualify for de facto custodian status under

KRS 403.270 [had to] be one continuous period of time.” Meinders, 572 S.W.3d 

at 57. The previous provision of KRS 403.270(1)(a) that was in effect through 

June 28, 2021, provided as follows:

“[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 of older . . . .
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(Emphasis added.)

As set forth above, the family court determined that the Englands

qualified as de facto custodians by including aggregated periods of time that

occurred before the statute was amended effective June 29, 2021. The Englands

concede in their Appellees’ brief that “[a]t the time of the hearing, [they] had not

been primary caregivers for [one] (1) continuous year, and the trial court had to

rely on parenting time that had taken place prior to the statute’s amendment.”

KRS 446.080(3) mandates that “[n]o statute shall be construed to be 

retroactive, unless expressly so declared.” The amendment to KRS 403.270 does 

not expressly declare that it has retroactive application. In Commonwealth 

Department of Agriculture v. Vinson, 30 S.W.3d 162 (Ky. 2000), our Supreme 

Court explained as follows:

Kentucky law prohibits the amended version of a 

statute from being applied retroactively to events which 

occurred prior to the effective date of the amendment 

unless the amendment expressly provides for retroactive 

application. KRS 446.080(3). Kentucky Industrial

Utility Customers, Inc. v. Kentucky Utilities Company,

Ky., 983 S.W.2d 493 (1998). This is a very fundamental 

principle of statutory construction in Kentucky. The 

courts have consistently upheld this admonition and have 

declared there is a strong presumption that statutes 

operate prospectively and that retroactive application 

of statutes will be approved only if it is absolutely 

certain the legislature intended such a result. This is 

particularly true when the legislation is substantive and 

not remedial, and new rights and new duties are created. 
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. . .

Amendments which change and redefine the outof-court rights, obligations and duties of persons in their 

transactions with others are considered to be changes in 

substantive law and come within the rule that statutory 

amendments cannot be applied retroactively to events 

which occurred prior to the effective date of the 

amendment. 

Id. at 168-69 (emphasis added).

The amendment which was at issue in Vinson “changed the causation 

and weight of evidence components as to what an employee is required to prove 

successfully to support a claim under the [Whistleblower] Act. The amendment 

also required a new burden of proof from the employer in order to successfully 

defend a claim under the law.” Id. at 169. Our Supreme Court held that “[t]he 

changes in causation and weight of evidence were changes in substantive law.” Id. 

It also held that “[t]he change in the burden of proof was also a change in 

substantive law . . . . The amended version of the statute clearly provides for new 

legal consequences as a result of certain types of employer conduct which did not 

have any legal significance prior to amendment of the statutes.” Id. Amendments 

which give past conduct new substantive legal consequences cannot be applied

retroactively and come within the rule against retroactive legislation. Moore v.

Stills, 307 S.W.3d 71, 80-81 (Ky. 2010).
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Meinders, supra, dealt with the pre-amended version of KRS 403.270

and addressed the issue of whether the time period required to gain de facto

custodian status could be aggregated or whether it had to be continuous. Our 

Supreme Court held that the pre-amendment version of 403.270 did not allow 

aggregation and explained that:

. . . to allow a claimant to aggregate periods of time 

would undermine the purpose of the statute. Granting 

someone de facto custodian status gives that person “the 

same standing in custody matters that is given to each 

parent.” KRS 403.270(1)(b). “[T]he Due Process Clause 

of the Fourteenth Amendment protects the fundamental 

right of parents to make decisions concerning the care, 

custody, and control of their children.” Troxel v.

Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed.

2d 49 (2000). Therefore, a process that puts a third party 

on equal footing with a parent is not one to be taken 

lightly. It is a high burden, and rightfully so. To allow a 

third party to aggregate periods of time to add up to 

. . . a year . . . would drastically lower the burden of 

proof in comparison to proving the child lived with 

them continuously for the requisite time.

Meinders, 572 S.W.3d at 57 (emphasis added).

We conclude that the amendment to KRS 403.270(1)(a) allowing a 

third party to aggregate periods of time to qualify for de facto custodian status is 

substantive. It changes the burden of proof and gives past conduct new substantive 

legal consequences. Thus, the family court erred in considering any aggregated

periods of time that occurred before the date that the statute was amended on June

29, 2021 -- not only as to the time that each of the children resided with the
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Englands, but also as it pertains to the issue of whether the Englands were the 

primary caregivers and primary financial supporters. The provisions of KRS 

403.270 “are not triggered unless the biological parent has abdicated the role of 

primary caregiver and primary financial supporter to the person who claims to be 

the de facto custodian for the required period of time.” London v. Collins, 242 

S.W.3d 351, 358-59 (Ky. App. 2007) (emphasis added). 

 Although our conclusion that KRS 403.270(1)(a) is not retroactive in 

effect is dispositive of the outcome of this case, more importantly we hold that that 

statute should never have been invoked at all under the circumstances of this 

case. We agree with the second issue raised by the Rigdons; i.e., that they never 

abdicated their role as parents. Mrs. Rigdon was employed while also attending 

nursing school during the period of time that the Englands “volunteered” their 

assistance with the two younger children. The computation of days and dollars 

alone by the Englands does not suffice to vitiate the primacy of parenting 

maintained by the Rigdons.

The entire record was not sent to us initially as required by our Rules 

of Appellate Procedure. (RAP 24). We requested it and waited for it, and we 

carefully reviewed it. The record reveals ample evidence that the Rigdons actively 

parented the girls on all matters ranging from clothing to educational programs --

and that they experienced resistance from the Englands on decision-making 
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regarding the children. As an example, we note that while the children had clothes 

at home, they were often required to “change clothes” to something more 

appropriate upon arriving at the Englands’ residence. Mrs. Rigdon expressed an 

educational choice that conflicted with a proposal suggested by Mrs. England --

mere weeks before the petition for de facto custodianship was filed -- that arguably 

might have served as a catalyst for the filing.

 The act of “volunteering help” essentially morphed into an assertion of 

the right to undermine the fundamental right of the Rigdons “to make decisions 

concerning the care, custody, and control of their children.” Troxel, 530 U.S. at 

66, 120 S. Ct. at 2060. See also Walker v. Blair, 382 S.W.3d 862 (Ky. 2012).

 Substantial evidence in the record supports the fact that on some of the 

nights that the children spent with the Englands, they had also spent the days (or 

portions of the days) with the Rigdons. Yet, the Englands would “aggregate” and 

compute those nights as “their time,” ignoring in toto the continually shifting and 

overlapping nature of where or how the time was actually spent. Thus, we find 

clear error and abuse of discretion in the court’s disregard of the critically relevant 

reality of the continuous role of the Rigdons in parenting their children. Their 

acceptance of desperately needed assistance was erroneously construed to 

constitute abdication of their constitutionally protected primacy as parents, and the 
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award of de facto status to the Englands impermissibly impaired the parental rights 

of the Rigdons.

 The protection that de facto custodianship affords to children was not 

intended to serve effectively as abdication by statute. Sadly, that appears to be the 

undeniable result of what happened in this case.

 Therefore, we reverse and remand this matter to the Hardin Circuit 

Court for entry of an Order dissolving the de facto custodianship originally 

awarded to the Englands.

ALL CONCUR.

BRIEF FOR APPELLANTS:

G. William Bailey, Jr. 

Elizabethtown. Kentucky 

BRIEF FOR APPELLEES:

Kevin A. Groseclose

Leitchfield. Kentucky