http://www.uwex.edu/grg/kentucky.pdf
Kentucky
• Kentucky State Senate Bill 205- De facto Custodian Bill
AN ACT relating to child custody.
Be it enacted by the General Assembly of the
Commonwealth of Kentucky:
Section 1. KRS 403.270 is amended to read as follows:
(1) (a) As used in this chapter, and Section 6 of this Act, 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 Social 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 Sections 2, 3, 4, 5, and 6 of this Act.
(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. The court shall consider all
relevant factors including:
(a) The wishes of the child's parent or parents, and any de
facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his
parent or parents, his siblings, and any other person who may
significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and
community;
(e) The mental and physical health of all individuals
involved;[ and]
(f) Information, records, and evidence of domestic violence
as defined in KRS 403.720;[.]
(g) The extent to which the child has been cared for, nurtured,
and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a
de facto custodian; and
(i) The circumstances under which the child was placed or
allowed to remain in the custody of a de facto custodian, including
whether the parent now seeking custody was previously prevented
from doing so as a result of domestic violence as defined in KRS
403.720 and whether the child was placed with a de facto
custodian to allow the parent now seeking custody to seek
employment, work, or attend school.
(3)[(2)] The court shall not consider conduct of a proposed
custodian that does not affect his relationship to the child. If
domestic violence and abuse is alleged, the court shall determine
the extent to which the domestic violence and abuse has affected
the child and the child's relationship to both parents.
(4)[(3)] The abandonment of the family residence by a custodial
party shall not be considered where said party was physically
harmed or was seriously threatened with physical harm by his or
her spouse, when such harm or threat of harm was causally related
to the abandonment.
(5)[(4)] The court may grant joint custody to the child's parents,
or to the child's parents and a de facto custodian, if it is in the
best interest of the child.
(6) If the court grants custody to a de facto custodian, the de
facto custodian shall have legal custody under the laws of the
Commonwealth.
Section 2. KRS 403.280 is amended to read as follows:
(1) A party to a custody proceeding may move for a temporary
custody order. The motion must be supported by an affidavit as
provided in KRS 403.350. The court may award temporary
custody under the standards of KRS 403.270 after a hearing, or, if
there is no objection, solely on the basis of the affidavits.
(2) If a proceeding for dissolution of marriage or legal separation
is dismissed, any temporary custody order is vacated unless a
parent or the child's custodian moves that the proceeding continue
as a custody proceeding and the court finds, after a hearing, that
the circumstances of the parents and the best interests of the child
require that a custody decree be issued.
(3) If a custody proceeding commenced in the absence of a
petition for dissolution of marriage or legal separation under KRS
403.420(1)(a) or (b) is dismissed, any temporary custody order is
vacated.
(4) If a court determines by clear and convincing evidence that
a person is a de facto custodian, the court shall join that person
in the action, as a party needed for just adjudication under Rule
19 of the Kentucky Rules of Civil Procedure.
Section 3. KRS 403.340 is amended to read as follows:
(1) No motion to modify a custody decree shall be made earlier
than two (2) years after its date, unless the court permits it to be
made on the basis of affidavits that there is reason to believe that:
(a) The child's present environment may endanger seriously
his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed
the child with a de facto custodian.
(2) If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, the court shall not modify
a prior custody decree unless it finds, upon the basis of facts that
have arisen since the prior decree or that were unknown to the
court at the time of entry of the prior decree, that a change has
occurred in the circumstances of the child or his custodian, and that
the modification is necessary to serve the best interests of the child.
In applying these standards, the court shall retain the custodian
appointed pursuant to the prior decree unless:
(a) The custodian agrees to the modification;
(b) The child has been integrated into the family of the
petitioner with consent of the custodian; or
(c) The child's present environment endangers seriously his
physical, mental, moral, or emotional health, and the harm
likely to be caused by a change of environment is outweighed
by its advantages to him.; or
(d) The custodian has placed the child with a de facto custodian.
(3) In determining whether a child's present environment may
endanger seriously his physical, mental, moral, or emotional
health, the court shall consider all relevant factors, including, but
not limited to:
(a) The interaction and interrelationship of the child with his
parent or parents, his de facto custodian, his siblings, and any
other person who may significantly affect the child's best
interests;
(b) The mental and physical health of all individuals
involved;
(c) Repeated or substantial failure, without good cause as
specified in KRS 403.240, of either parent to observe visitation,
child support, or other provisions of the decree which affect
the child, except that modification of custody orders shall not
be made solely on the basis of failure to comply with visitation
or child support provisions, or on the basis of which parent is
more likely to allow visitation or pay child support;
(d) If domestic violence and abuse, as defined in KRS
403.720, is found by the court to exist, the extent to which the
domestic violence and abuse has affected the child and the
child's relationship to both parents.
(4) Attorney fees and costs shall be assessed against a party
seeking modification if the court finds that the modification action
is vexatious and constitutes harassment.
Section 4. KRS 403.350 is amended to read as follows:
A party seeking a temporary custody order or modification of a
custody decree shall submit together with his moving papers an
affidavit setting forth facts supporting the requested order or
modification and shall give notice, together with a copy of his
affidavit, to other parties to the proceeding, who may file
opposing affidavits. If a court determines that a child is in the
custody of a de facto custodian, the court shall make the de facto
custodian a party to the proceeding. The court shall deny the
motion unless it finds that adequate cause for hearing the
motion is established by the affidavits, in which case it shall set
a date for hearing on an order to show cause why the requested
order or modification should not be granted.
Section 5. KRS 403.420 is amended to read as follows:
(1) A court of this state which is competent to decide child
custody matters has jurisdiction to make a child custody
determination by initial or modification decree if:
(a) This state is the home state of the child at the time of
commencement of the proceeding, or had been the child's
home state within six (6) months before commencement of the
proceeding and the child is absent from this state because of
his removal or retention by a person claiming his custody or
for other reasons, and a parent or person acting as parent
continues to live in this state; or
(b) It is in the best interest of the child that a court of this
state assume jurisdiction because the child and his parents, or
the child and at least one (1) contestant, have a significant
connection with this state, and there is available in this state
substantial evidence concerning the child's present or future
care, protection, training, and personal relationships; or
(c) The child is physically present in this state and the child
has been abandoned or it is necessary in an emergency to
protect the child because he has been subjected to or
threatened with mistreatment or abuse or is otherwise
neglected or dependent; or
(d) It appears that no other state would have jurisdiction
under prerequisites substantially in accordance with
paragraphs (a), (b), or (c), or another state has declined to
exercise jurisdiction on the ground that this state is the more
appropriate forum to determine the custody of the child, and it
is in the best interest of the child that this court assume
jurisdiction.
(2) Except under paragraphs (c) and (d) of subsection (1) of this
section, physical presence in this state of the child, or of the child
and one (1) of the contestants, is not alone sufficient to confer
jurisdiction on a court of this state to make a child custody
determination.
(3) Physical presence of the child, while desirable, is not a
prerequisite for jurisdiction to determine his custody.
(4) A child custody proceeding is commenced in the Circuit
Court:
(a) By a parent, by filing a petition:
1. For dissolution or legal separation; or
2. For custody of the child in the county in which he is
permanently resident or found; or
(b) By a person other than a parent, by filing a petition for
custody of the child in the county in which he is permanently
resident or found, but only if he is not in the physical custody
of one (1) of his parents; or
(c) By a de facto custodian of the child, by filing a petition for
custody of the child in the county in which the child is permanently
resident or found.
Section 6. KRS 405.020 is amended to read as follows:
(1) The father and mother shall have the joint custody, nurture,
and education of their children who are under the age of eighteen
(18). If either of the parents dies, the survivor, if suited to the trust,
shall have the custody, nurture, and education of the children who
are under the age of eighteen (18). The father shall be primarily
liable for the nurture and education of his children who are under
the age of eighteen (18) and for any unmarried child over the age
of eighteen (18) when the child is a full-time high school student,
but not beyond completion of the school year during which the
child reaches the age of nineteen (19) years.
(2) The father and mother shall have the joint custody, care, and
support of their children who have reached the age of eighteen (18)
and who are wholly dependent because of permanent physical or
mental disability. If either of the parents dies, the survivor, if suited
to the trust, shall have the custody, care, and support of such
children.
(3) Notwithstanding the provisions of subsections (1) and (2) of
this section, a person claiming to be a de facto custodian, as
defined in Section 1 of this Act, may petition a court for legal
custody of a child. The court shall grant legal custody to the
person if the court determines that the person meets the
definition of de facto custodian and that the best interests of the
child will be served by awarding custody to the de facto
custodian.
(4) Notwithstanding the provisions of subsections (1) and (2) of
this section, if either parent dies and at the time of death a child
is in the custody of a de facto custodian, as defined in Section 1
of this Act, the court shall award custody to the de facto
custodian if the court determines that the best interests of the
child will be served by that award of custody.
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