So, you have been raising your grandson, niece or friend's child.  You have been doing it for some time and biological mom and dad are either out of the picture completely or rarely around.  You have become this child's world and he/she has become yours.  You want them to be with you and you want to raise them.  You logically ask yourself, "What are my rights?" and "Can I get custody?"  Well, this blog post is for you.

I think the best way to begin this analysis is to demonstrate, generally, what Kentucky law says about the matter.  I will then explain, in plainer terms, what it means for you.  Again, as these matters are all very fact-specific, you will be best to consult in detail with an attorney.  I have handled plenty of these matters and can tell you that they very much hinge on the facts.

General Legal Background

It is agreed that Kentucky Courts have long held that:

In order for a nonparent to become a party to a dispute over custody of a child, they must hold the status of de facto custodian. KRS 403.280(4). A de facto custodian is a person who proves by clear and convincing evidence to have been a child's primary caregiver and financial supporter, for a period of six months (if the child is under three years old) or one year (for older children). KRS 403.270(1). This language has been interpreted to mean that in order to be a de facto custodian, the nonparent must not simply be a primary caregiver, but must, in fact, be the primary caregiver.

 Jones v. Jones, 510 S.W.3d 845, 849 (Ky.App.2017).  In addition to the above, it has also been established that: 

Statutory interpretation requires that the “plain meaning” of the statute controls. See Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 614 (Ky.2004). The language of KRS 403.270 requires that a de facto custodian serves as the “primary”—not the “sole”—caregiver and financial supporter. Although public assistance may have provided medical care for the child, substantial evidence supports the conclusion of the Greenup Family Court that Vaughn was B.C.'s primary caregiver and financial supporter.

Spreacker v. Vaughn, 397 S.W.3d 419, 422 (Ky.App.2012)(emphasis added).

Here are the pertinent parts of KRS 403.270:

(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 has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a 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.

(b) A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280, 403.340, 403.350, 403.822, and 405.020.

(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian.

KRS 403.270.

What This Means For You

Generally, this means that you must file a Petition to establish yourself as a de facto custodian and for custody/timesharing.  You will need to get all biological parents, and any other party of interest (if there are any), served.  This is where an attorney with knowledge of these matters is so vital as there will be issues related to service of parties if one or both of the parents' locations are unknown or if they are in prison.

From there, and once all necessary parties are served, the matter will proceed through court.  Even with the court slowdown due to the coronavirus pandemic, these matters can still be filed and worked on.  These cases usually take one of three paths.  The first is that all necessary parties get served and the biological parents do nothing.  This means that the non-biological parent would, in essence, be unopposed in their action.  As long as they can testify truthfully that the statutory requirements have been met, they will almost assuredly be deemed a de facto custodian and, in essence, be on equal footing as a parent.

The second path is that the parents are served and the parties reach an agreement.  This would mean that an Agreed Order or Mediation Agreement is entered regarding de facto status, custody and timesharing.  This agreement would outline what the custody and timesharing arrangement is with respect to the child.

The third path is that one, or both, biological parents contest the action and the parties head towards a final hearing on the matter.  At that hearing the party seeking to be declared a de facto custodian has the burden of proof to establish that he/she/they meet the statutory requirements.  If they do, then the court will have to determine what the custody and timesharing arrangements will be based on "the best interests of the child" standard.

Conclusion

As this is only a very general introduction to get you some information and guidance to your questions, please understand that there will be more to the process than just this.  This is why a skillful and experienced attorney in the area of child custody is vital to your success.  If you need any assistance in this, or any of the matters in which I traditionally practice, please call me as soon as possible.

Jason Rapp