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

OPINIO N REVERSING AND REMANDING

**   **  **

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

COMBS, JUDGE: This appeal involves a petition for de facto custod ianship

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

children between them

-- three biolog ical daughters and Martina’s son from a
previous relationship. This matter concerns the Rigdons’ two younger daughters,- 2

-

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 s tep

- 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 jo int 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 ma y petition a court for
legal custody of a child. KRS 1 405. 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 someon e 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 “ d e 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.- 3

- parent has abdicated the role of primary caregiver and financial supporter of the child for the requir ed 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 pre c e de ntial commentary in mind
, we turn to the matter

before us. On August 29, 2022, Brenda England and Jeffrey England filed the ir
petition for de facto custody in Hardin Circuit Cour t, 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 childr en 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 sup porters 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

. . . . ”- 4

- On September 13, 2022, the family court conducted a hearing on the

de facto petiti on. On September 21, 2022, the court entered Findings of Fact,
Conclusions of Law, and Order Regarding De facto Custod y 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 petit ion 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 a nd 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.

( E mphasis added

. )- 5

- Citing KRS 446.080 and general rules of statutory construction, the
family court stated :

I n 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 fact o 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 i n 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 fina ncial 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 fili ng of this petition. The family court
ordered that the Englands be adjudged de facto custodians of A.P.R. and A.R.M.R.- 6

- On August 4, 2023, following a final hearing, the family court entered
Findings of Fact, Conclusions of Law, and Judgment, reciting a s 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 d e facto custody. Further, the Court did not hear any additional evidence during the final hearing which would have contradicted this prior ruling . . . .

The fam i ly court ordered that “ [t] he Petitioners, Jeff re y 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

am endment 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 co

parented 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 c hild, if it is in- 7

-

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

Tra nsp. 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 sh own 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

. . . . ( E mphasis 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.” M einders , 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 caregi ver 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

. . . .- 8

-

( E mphasis 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 statu te 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

Dep artment of Agriculture v. Vinson , 30 S.W.3d 162 (Ky. 2000), our Suprem e
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.- 9

- . . . Amendments which change and redefine the out

of

- 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 retroacti vely to events which occurred prior to the effective date of the amendment.

Id. at 168

- 69 ( e mphasis 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

s uccessfully 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).- 10

- Meinders
, supra , dealt with the pre

- amended version of KRS 403.270

and addressed the issue of whether the time period required to ga in 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 woul d 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 t he 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 lowe r 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. Thu s, 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- 11

-

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 financi al 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 ret roactive 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 nev er

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.

T he 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 rec ord 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- 12

-

regarding the children. As an example, we not e 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 Mr s. 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 unde rmine 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 e vidence 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 t ime,” 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- 13

-

award of de facto status to the Englands impermissib ly impaired the parental rights
of the Rigdons.

The protection that de facto custodianship affords to children was not
intended to serve effectively as abd ication by statute. Sadly, that appears to be the

undeniable result of what ha ppened 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 APPELLANT S :
G. William Bailey, Jr. Elizabethtown. Kentucky BRIEF FOR APPELLEE S :

Kevin A. Groseclose Leitchfield. Kentucky