presumption that joint custody and equally shared parenting time is in child's
best interests -- De facto custodian.
(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.
(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.
Subject to KRS 403.315, there shall be a presumption, rebuttable by a
preponderance of evidence, that joint custody and equally shared parenting time is
in the best interest of the child. If a deviation from equal parenting time is
warranted, the court shall construct a parenting time schedule which maximizes the
time each parent or de facto custodian has with the child and is consistent with
ensuring the child's welfare. 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 or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration
given to the influence a parent or de facto custodian may have over the child's
wishes;
(c) The interaction and interrelationship of the child with his or her parent or
parents, his or her siblings, and any other person who may significantly affect
the child's best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child's adjustment and continuing proximity to his or her home, school,
and community;
(f) The mental and physical health of all individuals involved;
(g) A finding by the court that domestic violence and abuse, as defined in KRS
403.720, has been committed by one (1) of the parties against a child of the
parties or against another party. The court shall determine the extent to which
the domestic violence and abuse has affected the child and the child's
relationship to each party, with due consideration given to efforts made by a
party toward the completion of any domestic violence treatment, counseling,
or program;
(h) The extent to which the child has been cared for, nurtured, and supported by
any de facto custodian;
(i) The intent of the parent or parents in placing the child with a de facto
custodian;
(j) 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; and
(k) The likelihood a party will allow the child frequent, meaningful, and
continuing contact with the other parent or de facto custodian, except that the
court shall not consider this likelihood if there is a finding that the other
parent or de facto custodian engaged in domestic violence and abuse, as
defined in KRS 403.720, against the party or a child and that a continuing
relationship with the other parent will endanger the health or safety of either
that party or the child.
(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.
(4) If the court grants custody to a de facto custodian, the de facto custodian shall have
legal custody under the laws of the Commonwealth.
Effective: June 29, 2021
History: Amended 2021 Ky. Acts ch. 132, sec. 1, effective June 29, 2021. -- Amended
2018 Ky. Acts ch. 198, sec. 1, effective July 14, 2018. -- Amended 2004 Ky. Acts ch.
133, sec. 42, effective July 13, 2004. -- Amended 2000 Ky. Acts ch. 14, sec. 51,
effective July 14, 2000. -- Amended 1998 Ky. Acts ch. 250, sec. 1, effective July 15,
1998. -- Amended 1992 Ky. Acts ch. 169, sec. 2, effective July 14, 1992. -- Amended
1980 Ky. Acts ch. 158, sec. 1, effective July 15, 1980. -- Amended 1978 Ky. Acts ch.
86, sec. 1, effective June 17, 1978; and ch. 369, sec. 1, effective June 17, 1978. --
Created 1972 Ky. Acts ch. 182, sec. 17.
Notes of Decisions
Mullins v. Picklesimer (2010)
ky · cites it 16×
“The Court of Appeals also rejected Mullins' argument that the trial court erred in setting aside the agreed judgment of custody, agreeing with the trial court that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However,…”
Pennington v. Marcum (2008)
ky · cites it 14×
“Today, both parents are recognized as having the right to custody, KRS 403.270; putative fathers may seek and obtain custody, KRS 405.”
Coffman v. Rankin (2008)
ky · cites it 16×
“[8] In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2). [9] A review of the Family Court's decision and *770 the record below shows that the trial judge explicitly…”
Moore v. Asente (2003)
ky · cites it 6×
“Under the act, "`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…”
Squires v. Squires (1993)
ky · cites it 28×
“A cursory examination of KRS 403.270 manifests the overriding consideration that any custody determination be in the best interest of the child.”
Fenwick v. Fenwick (2003)
ky · cites it 14×
“In Benassi, the Court held that when joint custodians “subsequently disagree,” 44 *781 “modification should be made anew under [KRS 403.270] as if there had been no prior custody determination.”
Sherfey v. Sherfey (2002)
kyctapp · cites it 11×
“10 Prior to the passage of KRS 403.270, parents could not lose custody of their children to a third party absent a showing of unfitness by clear and convincing evidence.”
Frances v. Frances (2008)
ky · cites it 7×
“After reviewing the record and the applicable statute, KRS 403.270, this Court finds no *755 clear error or abuse of discretion by the trial court and affirms the Court of Appeals, which affirmed the trial court’s decision granting joint custody, with the Ap-pellee being…”
J.N.R. v. O'Reilly (2008)
ky · cites it 13×
“No Subject Matter Jurisdiction Under KRS 403.270. Not relying solely on Chapter 406, J.”
London v. Collins (2007)
kyctapp · cites it 11×
“” Apparently because the court believed that the parties had agreed to the placement with LaTonya, there was no evidence taken, let alone that required to make the findings necessary to support an award of custody pursuant to KRS 403.270. The February 23, 2005, order, entered on…”
Allen v. Devine (2005)
kyctapp · cites it 11×
“16 We hold that the trial court erred in concluding that KRS 403.270, the “equal consideration” requirement, was not the applicable law and that it only applies to custody between parents, as it plainly states that it also applies to de facto custodians.”
Scheer v. Zeigler (2000)
kyctapp · cites it 40×
“The Benassi court further held that in such situations "modification should be made anew under KRS 403.270 as if there had been no prior custody determination.”
— Ky. Rev. Stat. § 403.270(1) — 42 cases
Sherfey v. Sherfey (2002)
kyctapp
“10 Prior to the passage of KRS 403.270, parents could not lose custody of their children to a third party absent a showing of unfitness by clear and convincing evidence.”
Mullins v. Picklesimer (2010)
ky
“The Court of Appeals also rejected Mullins' argument that the trial court erred in setting aside the agreed judgment of custody, agreeing with the trial court that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However,…”
Moore v. Asente (2003)
ky
“Under the act, "`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…”
Squires v. Squires (1993)
ky
“A cursory examination of KRS 403.270 manifests the overriding consideration that any custody determination be in the best interest of the child.”
— Ky. Rev. Stat. § 403.270(1)(a) — 31 cases
Mullins v. Picklesimer (2010)
ky
“The Court of Appeals also rejected Mullins' argument that the trial court erred in setting aside the agreed judgment of custody, agreeing with the trial court that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However,…”
Moore v. Asente (2003)
ky
“Under the act, "`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…”
— Ky. Rev. Stat. § 403.270(1)(b) — 18 cases
Moore v. Asente (2003)
ky
“Under the act, "`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…”
Allen v. Devine (2005)
kyctapp
“16 We hold that the trial court erred in concluding that KRS 403.270, the “equal consideration” requirement, was not the applicable law and that it only applies to custody between parents, as it plainly states that it also applies to de facto custodians.”
— Ky. Rev. Stat. § 403.270(1)(c) — 1 case
— Ky. Rev. Stat. § 403.270(1)(e) — 1 case
— Ky. Rev. Stat. § 403.270(2) — 158 cases
Coffman v. Rankin (2008)
ky
“[8] In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2). [9] A review of the Family Court's decision and *770 the record below shows that the trial judge explicitly…”
London v. Collins (2007)
kyctapp
“” Apparently because the court believed that the parties had agreed to the placement with LaTonya, there was no evidence taken, let alone that required to make the findings necessary to support an award of custody pursuant to KRS 403.270. The February 23, 2005, order, entered on…”
Pennington v. Marcum (2008)
ky
“Today, both parents are recognized as having the right to custody, KRS 403.270; putative fathers may seek and obtain custody, KRS 405.”
— Ky. Rev. Stat. § 403.270(2)(a) — 13 cases
— Ky. Rev. Stat. § 403.270(2)(a)(b) — 1 case
— Ky. Rev. Stat. § 403.270(2)(b) — 12 cases
Coffman v. Rankin (2008)
ky
“[8] In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2). [9] A review of the Family Court's decision and *770 the record below shows that the trial judge explicitly…”
— Ky. Rev. Stat. § 403.270(2)(c) — 15 cases
Coffman v. Rankin (2008)
ky
“[8] In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2). [9] A review of the Family Court's decision and *770 the record below shows that the trial judge explicitly…”
— Ky. Rev. Stat. § 403.270(2)(d) — 5 cases
Coffman v. Rankin (2008)
ky
“[8] In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2). [9] A review of the Family Court's decision and *770 the record below shows that the trial judge explicitly…”
— Ky. Rev. Stat. § 403.270(2)(e) — 10 cases
Coffman v. Rankin (2008)
ky
“[8] In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2). [9] A review of the Family Court's decision and *770 the record below shows that the trial judge explicitly…”
— Ky. Rev. Stat. § 403.270(2)(f) — 12 cases
— Ky. Rev. Stat. § 403.270(2)(g) — 9 cases
— Ky. Rev. Stat. § 403.270(2)(h) — 4 cases
— Ky. Rev. Stat. § 403.270(2)(i) — 3 cases
— Ky. Rev. Stat. § 403.270(2)(j) — 2 cases
— Ky. Rev. Stat. § 403.270(2)(k) — 7 cases
— Ky. Rev. Stat. § 403.270(3) — 14 cases
Coffman v. Rankin (2008)
ky
“[8] In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2). [9] A review of the Family Court's decision and *770 the record below shows that the trial judge explicitly…”
Squires v. Squires (1993)
ky
“A cursory examination of KRS 403.270 manifests the overriding consideration that any custody determination be in the best interest of the child.”
Scheer v. Zeigler (2000)
kyctapp
“The Benassi court further held that in such situations "modification should be made anew under KRS 403.270 as if there had been no prior custody determination.”
— Ky. Rev. Stat. § 403.270(4) — 6 cases
Squires v. Squires (1993)
ky
“A cursory examination of KRS 403.270 manifests the overriding consideration that any custody determination be in the best interest of the child.”
Sherfey v. Sherfey (2002)
kyctapp
“10 Prior to the passage of KRS 403.270, parents could not lose custody of their children to a third party absent a showing of unfitness by clear and convincing evidence.”
Fenwick v. Fenwick (2003)
ky
“In Benassi, the Court held that when joint custodians “subsequently disagree,” 44 *781 “modification should be made anew under [KRS 403.270] as if there had been no prior custody determination.”
Scheer v. Zeigler (2000)
kyctapp
“The Benassi court further held that in such situations "modification should be made anew under KRS 403.270 as if there had been no prior custody determination.”
— Ky. Rev. Stat. § 403.270(5) — 5 cases
Scheer v. Zeigler (2000)
kyctapp
“The Benassi court further held that in such situations "modification should be made anew under KRS 403.270 as if there had been no prior custody determination.”
Fenwick v. Fenwick (2003)
ky
“In Benassi, the Court held that when joint custodians “subsequently disagree,” 44 *781 “modification should be made anew under [KRS 403.270] as if there had been no prior custody determination.”
— Ky. Rev. Stat. § 403.270(a) — 1 case
— Ky. Rev. Stat. § 403.270(c) — 1 case
— Ky. Rev. Stat. § 403.270(f) — 1 case
— Ky. Rev. Stat. § 403.270(g) — 1 case
— Ky. Rev. Stat. § 403.270(h) — 1 case
— Ky. Rev. Stat. § 403.270(j) — 1 case
— Ky. Rev. Stat. § 403.270(k) — 1 case
— Ky. Rev. Stat. § 403.270(l) — 1 case
— Ky. Rev. Stat. § 403.270(l)(a) — 24 cases
Mullins v. Picklesimer (2010)
ky
“The Court of Appeals also rejected Mullins' argument that the trial court erred in setting aside the agreed judgment of custody, agreeing with the trial court that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However,…”
Moore v. Asente (2003)
ky
“Under the act, "`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…”
Sherfey v. Sherfey (2002)
kyctapp
“10 Prior to the passage of KRS 403.270, parents could not lose custody of their children to a third party absent a showing of unfitness by clear and convincing evidence.”
— Ky. Rev. Stat. § 403.270(l)(b) — 6 cases
Moore v. Asente (2003)
ky
“Under the act, "`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…”
London v. Collins (2007)
kyctapp
“” Apparently because the court believed that the parties had agreed to the placement with LaTonya, there was no evidence taken, let alone that required to make the findings necessary to support an award of custody pursuant to KRS 403.270. The February 23, 2005, order, entered on…”
Allen v. Devine (2005)
kyctapp
“16 We hold that the trial court erred in concluding that KRS 403.270, the “equal consideration” requirement, was not the applicable law and that it only applies to custody between parents, as it plainly states that it also applies to de facto custodians.”
— Ky. Rev. Stat. § 403.270(l)(c) — 2 cases
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