When a marriage or other coparenting relationship ends in Kentucky, and the parents can’t agree on questions of child custody and visitation, the court must make custody issues instead. In order to decide how to award custody, a judge, not a jury, must determine the best interests of the child—a broad standard that allows the judge wide discretion in child custody cases. Kentucky law allows the judge to award joint custody to both parents—or to one parent and a de facto custodian--if the judge finds that joint custody is in the best interests of the child involved. Alternatively, the judge can award sole custody to either parent or to a de facto custodian, again as long as the award is in the best interests of the child.
For a child under three years old, a de facto custodian is any person who has been the child’s primary financial support and caregiver and has lived with the child for six months. For a child over three years old, a de facto custodian is any person who has been the child’s primary financial support and caregiver and has lived with the child for one year. A person who wants a judge to make a de facto custodian determination must present clear and convincing evidence, meaning it must be very persuasive. If the judge finds that a de facto custodian exists, the judge will give that person the same consideration given to the parents in determining custody arrangements.
The judge considers many factors when determining the best interests of the child, pursuant to Kentucky Revised Statutes, section 403.270(2). The factors include:
If the child has been placed with a de facto custodian, the court will consider why the parents placed the child and let the child remain with the custodian. As always, the court’s custody decision will be guided by what arrangement will be in the best interests of the child.
In Kentucky, the court will only consider conduct of a proposed custodian that affects the relationship to the child. Any conduct that does not affect the relationship is not relevant to the custody determination and the judge won’t allow it to be presented in court. For example, in cases where domestic violence allegations are made, the court will only consider those allegations to the extent that the domestic violence affects the child and the child’s relationship with each parent.