DeFacto Custodian Published Opinion from Ky Court of Appeals Today

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JONES-SWAN v. LUTHER

Biological parents voluntarily placed children in Appellants' care during a custody dispute in which biological father was seeking sole custody in an action for dissolution of marriage. Father was granted sole custody of the children. Appellants returned children to biological father and filed a petition requesting status as de facto custodians under KRS 403.270.

The Court of Appeals held the trial incorrectly interpreted KRS 403.270 as requiring the de facto custodians to have possession of the children when filing a petition for de facto status. A person asking for status as a de facto custodian need not have physical possession of the child, but must have had physical possession, as the primary caregiver and financial support, of the child for at least six months.

However,  this case, the Appellants did not meet the six month requirement because during the time the children were in their care there was an ongoing custody dispute. Under KRS 403.270 “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.” Thus, the Court of Appeals ultimately affirmed the trial court’s order dismissing Appellants' petition for de facto custodian status.

Digested by Elizabeth M. Howell

 

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