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In Kentucky, you can file for custody if you are:
- a parent; or
- a “de facto custodian.”1
A “de facto custodian” is a person who has been the child’s primary caregiver and who financially supported the child. Also, within the last two years, the child must have lived with this person for the following amount of time:
- if the child is less than three years old, a total of six months or more;
- if the child is three years old or older, a total of one year or more; or
- if the child has been placed with the person by the Department for Community Based Services, a total of one year or more.2
Once a judge determines that a person meets the definition of de facto custodian, that person has the same right to file for custody that a parent has.2
1 See Ky. Rev. Stat. § 403.270
2 Ky. Rev. Stat. § 403.270(1)
What factors will a judge look at when deciding custody?
A judge will decide custody based on what s/he believes is in the best interest of the child. To figure out what’s best for the child, the judge considers many factors, including:
- what the parents and any de facto custodian want the arrangement to be;
- what the child wants - however, the judge will also consider any influence that a parent or de facto custodian may have over the child’s wishes;
- the interaction and relationship the child has with his/her parents, siblings, and any other person that might significantly affect the child’s best interest;
- the motivation of the adults participating in the custody proceeding;
- the child’s adjustment and continuing closeness (proximity) to his/her home, school and community;
- the mental and physical health of all individuals involved;
- any determination (finding) by the judge that domestic violence and abuse have been committed by one of the parties against the other party or against a child of the parties. The judge would then consider:
- how much the domestic violence and abuse have affected the child;
- how much the domestic violence and abuse have affected the child’s relationship to each party; and
- any efforts the abuser has made towards completing a domestic violence program, treatment, or counseling;
- whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence; and
- the likelihood that a party will allow the child to have frequent, meaningful, and continuing contact with the other parent or de facto custodian. However, the judge will not consider this if the judge has determined that:
- the other parent or de facto custodian committed domestic violence and abuse against the party or a child; and
- a continuing relationship with the other parent will endanger the health or safety of either the party or the child; and
- if a de facto custodian is filing for custody:
- how much the child has been cared for and financially supported by the de facto custodian;
- the intent of the parent(s) in placing the child with a de facto custodian; and
- the reason(s) the child was placed under the care of a de facto custodian.1
Note: If you left the family home because you were physically harmed - or seriously threatened with physical harm - by the other parent, the judge is not supposed to hold that against you.2
1 Ky. Rev. Stat. § 403.270(2)
2 Ky. Rev. Stat. § 403.270(3)
Will a judge always grant joint custody?
A judge will make a decision about custody based on what s/he thinks is in your child’s best interest. However, under Kentucky law, there is a “rebuttable presumption” in favor of joint custody. This means that the judge will assume that joint custody and equally shared parenting time is in the best interest of the child. If either party does not want joint custody, s/he has to convince the judge to grant another type of custody/parenting time order, such as sole custody or unequal parenting time.1
The only time when the judge will not assume that custody and equally shared parenting time is in the best interest of the child is if one party has a domestic violence order against the other party. The order could be for his/her own protection or for the protection of the child who is the subject of the custody case.2
1 Ky. Rev. Stat. § 403.270(2)
2 Ky. Rev. Stat. § 403.315
Should I start a court case to ask for supervised visits?
If you’re worried about leaving your child alone with the abuser, you might think about asking a judge to order supervised visits. Supervised visits could be as lenient as having someone else there during the visits to “keep an eye” on things, or it could be as strict as having a professional appointed to observe and report back on the interaction between your child and the other parent. If you are already in court because the abuser filed for visitation or custody, it might be worth asking for supervised visits if you have a good reason. It depends on your situation.
However, if there is no court case going on now, it’s a good idea to talk to a lawyer before you start a case to ask for supervised visits. A custody lawyer in your area can explain what you need to prove to get supervised visits and how long they might last, based on what is happening in your case.
Usually, supervised visits are only ordered for a short time but this may be different depending on where you live and who your judge is. The judge might order a professional to watch the visits, or a relative or other person known to either parent might volunteer to be the supervisor. If the supervisor doesn’t report any big problems back to the judge, the visits might become unsupervised. At the end of a case, the other parent might get more frequent and longer visits than s/he had before you went into court. S/he might even get some form of custody.
If your child is in immediate danger from the abuser, you may need to start a case to ask for custody and supervised visits to protect your child. To find out what is best for your situation, you can look for legal advice using our Kentucky Finding a Lawyer page.
