Introduction

In today's world, many children are being raised by non-parent relatives or people who share no biological relationship with them.  In a previous blog post, I discussed what it meant to be a de facto custodian.  This was an important article because it generally detailed what to do in a scenario where you are raising a child, and have been for some time, and want to seek custody.  However, what if you do not qualify as a de facto custodian but have still be raising the child...are there avenues for you to explore to try and be awarded custody?  The short answer is, yes, there are.  However, these are very detailed, nuanced and fact specific.  The following article is designed to give you some very general insight into one such path.  That path is known as waiver.  For any legal matter, you should always consult with an attorney.

Parental Rights

To understand waiver, we must first look at how protected biological parents are with respect to raising their children.  The Supreme Court of The United States gives clear insight into the sacrosanct nature of these rights.  In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the Court found, "that parents have a fundamental liberty interest in the care, custody, and control of their children."  Goodlett v. Brittain, 544 S.W.3d 656 (Ky.App.2018)(citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)).  Another way of saying "fundamental liberty interest" is "a core and protected right to freely exercise as they choose."  

Kentucky courts have agreed with this analysis.  "The Courts of the Commonwealth have consistently recognized a parent's superior right to the care and custody of his biological children and that he has a fundamental, basic and constitutionally protected right to raise his own children."  London v. Collins, 242 S.W.3d 351, 357-58 (Ky.App.2007).   Both analyses are stating that there has to be a foundationally and factually legitimate, continuing and overwhelming need in order to disturb this right.  This is where waiver comes into play.

What is Waiver?

Waiver occurs when a biological parent cedes or waives their superior right of custody to another.  Courts must make a finding under a "clear and convincing" standard of proof that waiver has occurred.  If you are looking for a definition of "clear and convincing" evidence, good luck.  Kentucky courts have never truly defined it and it remains an amorphous phrase only characterized by degree as something greater than a "preponderance of the evidence" and proof "beyond a reasonable doubt." 

With that aside, there is some guidance (although no definition), with respect to the issue of waiver.  "It may be shown by 'proof of a ‘knowing and voluntary surrender or relinquishment of a known right.' It may also “be implied ‘by a party's decisive, unequivocal conduct reasonably inferring the intent to waive,' as long as ‘statements and supporting circumstances [are] equivalent to an express waiver.' Although 'no formal or written waiver is required, statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.'”  Temple v. Temple, 298 S.W.3d 466, 471 (Ky.App.2009(citations omitted).

The general analysis that a trial court is tasked to undertake is as follows:

In determining whether parents have relinquished “physical custody” in a manner that confers standing upon a nonparent, Kentucky trial courts-like other courts that have addressed this issue-should consider, among other factors: (1) how possession of the child was acquired by the nonparent, especially the intent of the parents at the time of their relinquishment of the child to the nonparent; (2) the nature and duration of the possession by the nonparent; (3) the age of the child when possession was acquired by the nonparent and the child's age when the parents sought the child's return; (4) any visits by the parents during the nonparent's possession of the child; (5) any financial support by the parents during the child's stay with the nonparent; (6) the length of time between the relinquishment and the parent's efforts to secure the child's return; and (7) what efforts the parents made to secure the child's return. Although we recognize that these factors cannot be applied mechanically as a formula to generate a conclusive answer as to the nonparent's standing, we believe these factors are useful analytical tools. We further recognize that although factors (1) and (2) will usually have the most importance, the other factors may also impact upon the determination.

Moore v. Asente, 110 S.W.3d 336, 358-59 (Ky.2003).

Conclusion

Proving waiver places a high burden on the party seeking to do so.  However, it is far from impossible.  If you believe you may be in such a situation, as a biological parent or third party, please contact an attorney to assist you.

Jason Rapp