B.F. v. T.D., 194 S.W.3d 310 (Ky., 2006)

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Issue and Holding:
Whether one who is not a parent but who has nevertheless participated substantially in the support and rearing of a child for a significant period of time has standing to claim a right of custody or visitation upon discontinuance of the cohabitational relationship with the parent. The Court held no, such person has no standing.

B.F. and T.D. were in a cohabitational, same-sex, relationship for about eight years. They adopted a daughter, but only T.D. was the adoptive parent due to the parties’ uncertainty of the law with respect to same-sex couples jointly adopting a child. The child lived with the couple for six years, after which the couple discontinued their relationship.
B.F. asserted that she was a de facto custodian of the child; however, the trial court found that B.F. did not meet the requirements of Kentucky law for de facto custodian status. The Court of Appeals affirmed. The Supreme Court granted discretionary review.

KRS 403.420 limits standing to claim a right of custody to 1) a parent, 2) a de facto custodian, and 3) a person other than a parent only if the child is not in the physical custody of one of the parents. Since B.F. is not a parent and the child remained in the custody of her mother, T.D., at the time the custody proceeding began, B.F.’s only option was to claim de facto custodian status.
KRS 403.270 defines de facto custodian as someone who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child. B.F. was the primary financial supporter of the child. However, T.D. was the child’s primary caregiver.
The Court held that the trial court’s ruling that B.F. was not the primary caregiver was not clearly erroneous. Testimony by B.F. confirmed that T.D. was the primary caregiver. As a result, B.F. did not meet her burden of proof. Therefore, the Court affirmed the decision below.

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