New Defacto Custodianship Standards

A newer Supreme Court of Kentucky ruling clarifies the rule regarding the timeframe for satisfying the care requirement to rule for Defacto Custodianship.

Meinders v Middleton, 572 S.W.3d 52, ruled that the period of time a person must act as the child’s primary caregivers and financial supporter must be continuous.

Defacto Custodian In Kentucky (Defined)

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. 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.

How Long Does it Take to be a Defacto Custodian?

The amount of time necessary to be ruled a defacto custodian depends on the age of the child OR (in some situations) how the person received custody or control of the child.

• Children age 3 and under – the timeframe is 6 months
• Children age 4 and older – the timeframe is 1 year
• Children placed in the home by the Department of Social Services – the timeframe is 1 year

New Caselaw For Defacto Custodianship In Kentucky

The Supreme Court of Kentucky ruling in Meinders v Middleton, overruled prior caselaw that was inconsistent regarding whether the timeframe could be compounded or had to be continuous. The court looked at the intent of the legislature in the wording used in the statute to determine that an aggregate of different times periods was not the intention of the legislature. But that a person must satisfy this requirement in a single continuous time period.

Prior caselaw allowed persons (in some situations) to combine several blocks of time where they were the primary caregiver and provided financial support to meet the required timeframe of either 6 months or 1 year. This ruling clearly states that is now not an option.

Effect Of New Caselaw On Defacto Custodianship In Kentucky

This 2019 Supreme Court of Kentucky ruling makes it more difficult for individuals to satisfy the already rigorous requirements to be found a defacto custodian in Kentucky. However, if an individual is able to satisfy these requirements, they are given the same standing in the court system as biological parents. This includes granting them the same rights to joint custody and equal timesharing with the minor child as the parents. This is an extremely strong position to be in regarding access to and care for a minor child.