Criminal Appeal
June 10, 2023
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What Is a "Defacto" Custodian?
A defacto custodian is a person who shows by clear and convincing evidence they have been the primary caregiver and financial support for a child for an extended period of time. Once that has been proven, the defacto custodian has the same rights to the child as a biological parent in court cases.
Defacto Custodian - The Legal Definition
The statute controlling defacto custodians is KRS 403.270, which states:
(1) (a) 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 six (6) months or more if the child is under three (3) years of age and for an aggregate period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
What Does It Mean To Be A Defacto Custodian In Kentucky?
If an individual is able to satisfy these requirements, they are given the same standing in the court system as if they were biological parents. They have the same rights to joint custody and equal timesharing with the minor child as parents.
The court must determine custody in accordance with the child's best interests and equal consideration must be given to each parent and to any de facto custodian. The rebuttable presumption of joint custody and equal parenting time apply.
If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule that maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare.
What Is Required To Be A Defacto Custodian?
The statute sets forth a number of requirements for defacto 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 or whether the child was placed by CHFS.
Time Requirements: Defacto Custodians
- Children age 3 and under – the timeframe is 6 months
- Ages 4 and older – the timeframe is 1 year
- Children placed in the home by the Department of Social Services – the timeframe is 1 year
The time period requirement must be satisfied in one continuous period of time, per a recent change in caselaw from the Supreme Court of Kentucky. And it cannot be satisfied in aggregate from multiple time periods, or multiple people from multiple homes. This does not mean that a married couple is excluded, if the parties are acting as a single unified team, they are both able to be recognized as defacto custodians.
If you have questions about becoming a defacto custodian, we can help guide you. If you are concerned that another person may become the defacto custodian of your child, contact us as soon as possible. Timing matters in these custody cases.
