Kentucky (KRS Ann. , § 403. 270 )
In 1998, the Kentucky General Assembly adopted its version of “de facto” custodian. This law defines the term and requires a court that determines a person is a de facto custodian to give him or her equal standing in court with a child’s parents in cases involving custody of the child.
To qualify as a de facto custodian, a person (who could be a person other than a grandparent) must show by clear and convincing evidence that the child has lived with him and he has been child’s primary caretaker and source of financial support for:
1. six months or more, if the child is under three years old; or
2. a year or more, if the child is three years old or above or has been placed with the caretaker by the state child protective services agency.
The time a child spends with a grandparent after a parent begins a proceeding to regain custody does not count in determining the required minimum residence and caretaking period.
In deciding whether to give custody to a parent or a de facto custodian the court must be guided by the child’s best interest and must consider such factors as:
1. the wishes of the parents, child, and the de facto custodian;
2. the extent to which the de facto custodian has cared for, nurtured, and supported the child;
3. the parents’ intent and the circumstances under which the child was placed with the de facto custodian, including whether domestic violence was a factor and whether the child was placed to allow the parent to seek work or attend school; and
4. the physical and mental health of all individuals involved.
In addition to awarding custody to one or the other party, the court can award joint custody to the parents and the de facto custodian.
In February 2003, the Kentucky Court of Appeals upheld this law in the face of a challenge by a parent who argued that it infringed on the “fundamental right of a natural parent” to determine the care, custody, and control of his child. In a two-to-one ruling, the majority noted that the law requires a court to determine “that the natural parent has abdicated his or her role as primary caregiver for a substantial period of time” (Rogers v. Blair, No. 2001-CA-001835-MR, as reported in the Louisville Courier-Journal, February 8, 2003).