Link v. Link

1

KYLE LINK APPELLANT v. KAYLA LINK APPELLEE

No. 2023-CA-1073-MR

Court of Appeals of Kentucky

July 12, 2024

APPEAL FROM MEADE CIRCUIT COURT HONORABLE KENNETH H. GOFF, II, JUDGE ACTION NO. 22-CI-00009

BRIEFS FOR APPELLANT:

Charles D. Brown, Jr.

Abby L. Braune

Louisville, Kentucky

BRIEF FOR APPELLEE:

Lyn Taylor Long

Elizabethtown, Kentucky

BEFORE: CETRULO, GOODWINE, AND KAREM, JUDGES.

OPINION

KAREM, JUDGE:

Kyle Link appeals from a Meade Circuit Court order dismissing his petition for joint custody of N.W.L. ("Son"), the minor child of his former wife, Kayla Link. The circuit court held that Kyle lacked standing and failed to prove that Kayla waived her superior parental rights. Kyle also appeals from a restraining order entered by the circuit court, banning him from communicating with Kayla or Son, from attending any events involving Son, and from posting on social media about Son, Kayla, or the custody proceedings. Upon careful review, we (1) vacate the order dismissing Kyle's petition for custody and remand for findings regarding waiver under the standard set forth in J.S.B. v. S.R.V., 630 S.W.3d 693 (Ky. 2021), and Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), as modified on denial of reh'g (Aug. 26, 2010); and (2) vacate the restraining order because it fails to comport with Kentucky Rules of Civil Procedure ("CR") 65.

FACTUAL AND PROCEDURAL BACKGROUND

Kayla is the biological mother of Son, who was born in California in April 2008. She gave him the surname of the man she believed to be his father. At the time, this individual was in prison and Kayla was living with his grandmother. Son's biological paternity has never been established.

Kayla and Son moved to Kentucky in March 2009, and Kayla married Kyle Link on December 5, 2009. Kyle and Kayla have a daughter ("Daughter") together, who was born in May 2010. They did not tell Son that Kyle was not his biological father and only close friends and family knew the truth. Kyle and Kayla did not want Son to find out about his paternity until he was older and more emotionally mature.

Both Son and Daughter called Kyle "Dad." According to Kayla, it was Son's choice how he referred to Kyle, but she did not discourage him from calling Kyle "Dad."

In 2011, while Kyle was deployed in Afghanistan, Kayla changed her last name and Son's last name to Link. She and Son had not shared the same last name up to this point and Kayla wanted all members of the family unit to have the same last name. Kyle acted as a parent towards both Son and Daughter, playing with them, preparing their meals, cleaning the house, and taking them to medical appointments. During a period when Kayla worked full-time, Kyle stayed home to look after the children. He was listed on school forms and medical forms as Son's parent/guardian.

Kyle and Kayla were divorced on August 13, 2018, after approximately nine years of marriage. Kyle and Kayla had previously discussed Kyle adopting Son. Kyle raised the issue again at the time of their divorce, but Kayla adamantly opposed adoption. At that point, Son was ten years of age and still believed Kyle was his father. Kayla assumed both children would be treated similarly in the divorce settlement but then was advised that Son should not be included in the dissolution settlement agreement.

Pursuant to the divorce settlement, Kayla and Kyle agreed to alternate weeks of parenting time for Daughter. In practice, they treated the agreement as if it applied to both children. Son always accompanied Daughter when she went to stay at Kyle's house every other week. According to Kayla, this was so Son could ensure Daughter received proper care.

Kyle and Kayla contributed equal amounts financially to support the children after the divorce. Kyle paid childcare expenses for both children while Kayla paid for their health insurance premiums. When the children outgrew childcare, Kyle paid half their health insurance premiums. He also paid half their medical expenses, for items such as braces. The record contains a series of initially amicable emails and text messages between Kayla and Kyle following their divorce, consulting with one another on issues regarding both children. Over time, however, their relationship soured. On November 20, 2021, Kayla ended Son's contact with Kyle. At that time, without Kayla's knowledge, Kyle told Son he was not his biological father. Kyle filed a petition for custody and parenting time of Son on January 13, 2022.

The circuit court conducted a hearing on January 11, 2023, with testimony from Kayla, her fiance, her sister, and Kyle. Son, who was 15 years old at the time, did not testify at the hearing and there is no indication that the circuit court interviewed Son in chambers. On April 25, 2023, the circuit court entered an order finding that Kyle did not have standing to bring the custody petition and that Kayla had not waived her superior right to custody. Kyle filed a motion for relief pursuant to CR 59.05. While that motion was pending, Kayla filed a motion requesting a temporary injunction and restraining order against Kyle on behalf of herself and Son. Kyle filed a response. The circuit court entered an order stating that Kyle was to have no intentional contact or communication with Son until an evidentiary hearing was conducted. Following that hearing, which was conducted on August 14, 2023, the circuit court verbally denied Kyle's CR 59.05 motion and granted Kayla's motion for a restraining order. The court requested Kayla's counsel to draft two orders memorializing its decisions, which it entered on August 30, 2023. This appeal by Kyle from both orders followed.

ANALYSIS

i. Kyle had standing to bring his petition for custody because he co-parented Son for at least six months in the year prior to filing the petition

The circuit court held that Kyle lacked standing to petition for custody of Son. Kyle does not dispute that he cannot qualify as a de facto custodian under Kentucky Revised Statutes ("KRS") 403.270 but contends that the circuit court erred as a matter of law in ruling he cannot meet the criteria set out in KRS 403.800(13). We agree.

The circuit court's "ultimate determination on the standing issue is a pure legal question[,] which we review de novo." F.E. v. E.B., 641 S.W.3d 700, 704 (Ky. App. 2022) (internal quotation marks and citation omitted). "Under de novo review, we owe no deference to the . . . [circuit] court's application of the law to the established facts." Id.

Standing is defined as "[a] party's right to make a legal claim or seek judicial enforcement of a duty or right." Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010) (citation omitted). In order to have standing, a party must "have a judicially recognizable interest in the subject matter of the suit." Id. (citation omitted).

"Prior to 2004, standing to bring a custody action was limited by KRS 403.240 to 'a parent, a de facto custodian of the child, or a person other than a parent only if the child is not in the physical custody of one of the parents.'" Mullins, 317 S.W.3d at 574 (citing B.F. v. T.D., 194 S.W.3d 310, 310-11 (Ky. 2006)). So, for example, a "partner who lived with mother and mother's adopted child for six years as a family did not have standing to seek custody because the child was in the physical custody of the legal parent." Id.

This situation changed in 2004, with the passage of the Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800 et seq., which confers standing on the child's parents or "a person acting as a parent." Mullins, 317 S.W.3d at 574-75; KRS 403.822(1)(b)1. A "person acting as a parent" is defined

as a person, other than a parent, who:

(a) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and

(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state[.]

KRS 403.800(13).

"As used in KRS 403.800 to KRS 403.880, 'physical custody' means 'physical care and supervision of a child.'" Mullins, 317 S.W.3d at 575 (citing KRS 403.800(14)). Significantly for purposes of this appeal, "[t]his statutory definition of 'physical custody' does not require exclusive care and exclusive supervision." Id. Therefore, a person "who for the requisite period of time performed all the traditional parental responsibilities, concurrently with another or on an equal time sharing basis, had 'physical custody' under the provisions of KRS 403.800 et seq." Id. (emphasis added).

Under the terms of their dissolution settlement agreement, Kayla and Kyle have "joint, shared custody" of Daughter. The agreement provides for equal timesharing based on alternating weeks. It states that Kyle "shall have parenting time with [Daughter] beginning on Sunday July 29, 2018 until August 5, 2018 at 4:00 pm and every other week thereafter; Kayla shall have parenting time with [Daughter] beginning August 5, 2018 at 4:00 pm until August 12, 2018 at 4 pm and every other week thereafter." The agreement also provided for alternate holiday parenting time.

It is undisputed that Son accompanied Daughter during parenting time with Kyle and there is no evidence that parenting time did not follow the schedule set forth in the settlement agreement. This equal timesharing situation continued for over three years, from August 2018 until November 20, 2021 when Kayla decided Son would no longer accompany Daughter to stay with Kyle. Kyle filed his petition for custody on January 13, 2022. Thus, in the year immediately preceding the commencement of the custody action, he performed traditional parental...