We are often asked “can I file a custody action for a child in Kentucky? How does this work?” Custody may be sought on a non-emergency basis or on an emergency basis.
On a non-emergency basis, the following people may file the initiating petition: a parent, a de facto custodian, and “a person acting as a parent”. Ky. Rev. Stat. § 403.270 and Ky. Rev. Stat. § 403.800(13). Mullins v. Picklesimer, 317 S.W.3d 569, 575 (Ky. 2010).
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. Ky. Rev. Stat. § 403.270.
The current statute confers standing on the child’s parent(s) or “a person acting as a parent.” KRS 403.800(13) defines “a person acting as a parent” as a person, other than a parent, who:
(a) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state;
Mullins v. Picklesimer, 317 S.W.3d 569, 574-75 (Ky. 2010) said “physical custody” as used in KRS 403.800 to KRS 403.880 means “physical care and supervision of a child.” KRS 403.800(14). This statutory definition of “physical custody” does not require exclusive care and exclusive supervision. Thus a person has “physical custody” under the provisions of KRS 403.800 et. seq. if they performed all the traditional parental responsibilities for the requisite period of time, concurrently with another or on an equal time sharing basis.
The United States Supreme Court has recognized that parents have fundamental, basic and constitutionally protected rights to raise their own children and that any attack by third persons (and we would include grandparents in that category) seeking to abrograte that right must show unfitness by “clear and convincing evidence.” See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).
The Kentucky Supreme Court also recognized that parents of a child have a fundamental, basic, and constitutional right to raise, care for, and control their own children. Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989). When a non-parent does not meet the statutory standard of de facto custodian in KRS 403.270, the non-parent pursuing custody must prove either of the following two exceptions to a parent’s superior right or entitlement to custody:
(1) that the parent is shown by clear and convincing evidence to be an unfit custodian, or
(2) that the parent has waived his or her superior right to custody by clear and convincing evidence. Moore, 110 S.W.3d at 359.
Under Moore v. Asente, 110 S.W.3d 336, 359-60 (Ky. 2003), a custody dispute between a parent and a nonparent and non de facto custodian must fall within one of two exceptions to parental entitlement to custody:
(1) The parent is shown to be `unfit’ by clear and convincing evidence.
(2) The parent has waived his or her superior right to custody.
Kentucky courts have always required clear and convincing proof in cases where a parent is alleged to be unfit. Boatwright v. Walker, Ky.App., 715 S.W.2d 237 (1986).
Under the first exception, the nonparent must first show by clear and convincing evidence that the parent has engaged in conduct similar to activity that could result in the termination of parental rights by the state. Only after making such a threshold showing would the court determine custody in accordance with the child’s best interest.
The Kentucky Supreme Court has said “where the “burden of persuasion” requires proof by clear and convincing evidence, the concept relates more than anything else to an attitude or approach to weighing the evidence, rather than to a legal formula that can be precisely defined in words. Like “proof beyond a reasonable doubt,” “proof by clear and convincing evidence” is incapable of a definition any more detailed or precise than the words involved. It suffices to say that this approach requires the party with the burden of proof to produce evidence substantially more persuasive than a preponderance of evidence, but not beyond a reasonable doubt.” Vinson v. Sorrell, 136 S.W.3d 465, 468-69 (Ky. 2004)
Under Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989), the type of evidence that is necessary to show unfitness on the part of parent in a custody battle with a third party is:
(1) evidence of inflicting or allowing to be inflicted physical injury, emotional harm or sexual abuse;
(2) moral delinquency;
(3) abandonment;
(4) emotional or mental illness; and
(5) failure, for reasons other than poverty alone, to provide essential care for the children.
Kentucky requires the proof of facts by the “clear and convincing evidence” standard only in a few instances. Among those instances are establishing a lost will, termination of parental rights, illegitimacy of a child born in wedlock, unfitness of a natural parent for custody of a child, and fraud. Robert G. Lawson, The Kentucky Evidence Law Handbook § 9.00 (3d ed. 1993). Magic Coal Company v. Fox, 19 S.W.3d 88, 95 (Ky. 2000).
You can see that this is not an easy “step-by-step” formula, but rather, a complex series of concepts and cases in Kentucky law. The question of “can I file a custody action for a child in Kentucky?” may be better asked as “How do I find the right family law attorney to file a custody action for a child in Kentucky?”
The concept of waiver remains alive and well in a custody dispute between a non-parent and a parent in situations where the nonparent cannot qualify as a de facto custodian yet the parent’s conduct warrants a finding of waiver, allowing the non-parent to then be considered for custody. Boone v. Ballinger, 228 S.W.3d 1, 10 (Ky.App. 2007). The doctrine of waiver in a child custody situation is legally justified as well as necessary “in order to prevent the harm that inevitably results from the destruction of the bond that develops” between the child and the nonparent who has raised the child as his or her own. Boone, 228 S.W.3d at 10.
The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonparent to whom the parent has relinquished full custody. Mullins v. Picklesimer, 317 S.W.3d 569, 579 (Ky. 2010). In sole custody cases, the parent can waive their superior right to sole custody of the child in favor of a joint custody arrangement with you. In joint custody, each parent has full legal custody of the child, but they must share decision-making and physical possession of the child. See Pennington v. Marcum, 266 S.W.3d 759, 764 (Ky. 2008) and Frances v. Frances, 266 S.W.3d 754 (Ky. 2008). It is possible for there to be an absolute waiver of part of a parent’s superior custody rights as the natural parent of a child.
Under the second exception, however, if a waiver has been shown by clear and convincing evidence, the trial court shall determine custody between the parent and nonparent based on the best interest of the child. “Waiver requires proof of a knowing and voluntary surrender or relinquishment of a known right.'” However, waiver may be implied “by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive,” as long as “statements and supporting circumstances [are] equivalent to an express waiver.”
“The common definition of a legal waiver is that it is a voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party at his option might have demanded or insisted upon.” Greathouse v. Shreve, 891 S.W.2d 387, 390 (Ky. 1995) (quoting Barker v. Stearns Coal Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). “Because this is a right with both constitutional and statutory underpinnings, proof of waiver must be clear and convincing. As such, while no formal or written waiver is required, statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.” Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky. 2004) (quoting Greathouse, 891 S.W.2d at 390-91).
Mullins v. Picklesimer, 317 S.W.3d 569, 578-79 (Ky. 2010) held that no specific set of factors must be present in order to find there has been a waiver. However, the factors in Vinson v. Sorrell, 136 S.W.3d 465 (Ky. 2004) (length of time the child has been away from the parent, circumstances of separation, age of the child when care was assumed by the non-parent, time elapsed before the parent sought to claim the child, and frequency and nature of contact, if any, between the parent and the child during the non-parent’s custody) serve as a helpful guide in evaluating cases where the natural parent has surrendered full possession of the child to a nonparent.
Kentucky’s appellate courts have recognized two circumstances that constitute a knowing and voluntary waiver of a parent’s superior right to custody. Van Wey v. Van Weir, Ky., 656 S.W.2d 731, 738 (1983) and Boatwright v. Walker, Ky.App., 715 S.W.2d 237, 244 (1986) both held once the following have “been executed, withdrawal, while permissible, nevertheless waives the parent’s superior right to child custody, and the best interests of the child [then] takes precedence”:
(1) a voluntary petition to terminate parental rights to permit an adoption, or
(2) a voluntary, knowing consent to adoption.
Whether a parent has waived his or her superior right to custody under KRS 405.020 is a fact-specific determination that should be made after consideration of all relevant factors.
On an emergency basis, any interested person may file the initiating petition. Ky. Rev. Stat. § 620.070(1). The court in T.C. v. M.E., 603 S.W.3d 663, 679 (Ky. Ct. App. 2020) defines “interested persons” as “parents, guardians, family members, or DCBS”. I will take up this topic in a separate blog.
We have learned that the initial question of “can I file a custody action for a child in Kentucky?” should almost always be considered as “How do I find the right family law attorney to file a custody action for a child in Kentucky?” Our laws on child custody in Kentucky are quite complex and more guidelines for your Judge’s discernment than recipe. As you can tell from the list, proving the elements of maintenance (aka spousal support) and cohabitation is likely to be very time consuming and expensive which is why you need to hire an experienced family law attorney who is well versed in these matters. We invite you to contact us or call the Law Offices of John Schmidt & Associates PLLC today at (502) 509-1490 to schedule an appointment to speak with an experienced attorney who can help you navigate these issues.