De Facto Custodian Status Not Limited to a Marital Unit for Two or More Primary Caregivers – Published Opinion from Kentucky Supreme Court

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Krieger, et al. v. Garvin, et al.


In a temporary removal hearing, Family Court awarded temporary custody of eight-month-old Child to her maternal Grandfather and Grandfather’s long-term Girlfriend, with whom Grandfather cohabitated. Mother later stipulated to risk of abuse or neglect, and Family Court ordered temporary custody of Child was to remain with Grandfather and Girlfriend. Later, maternal Grandmother filed an action seeking custody of, or in the alternative, grandparent visitation with Child. Grandfather and Girlfriend responded and filed a cross-petition to be declared de facto custodians of Child. After a hearing, Family Court found Grandfather and Girlfriend to be the primary caregivers and financial supporters of child, named them de facto custodians, and awarded them permanent sole custody. Family Court also awarded Grandmother grandparent visitation. Grandmother appealed.


The Court of Appeals held that Family Court erred in naming more than one individual as Child’s de facto custodian and did not address the other issues before it, finding them moot. The Court of Appeals reversed Family Court’s decision. Grandfather and Girlfriend sought discretionary review from the Supreme Court.


The Supreme Court reversed the Court of Appeals, holding that Family Court did not err when it named more than one person as Child’s de facto custodian. It acknowledged that KRS 403.270 refers to “the primary caregiver” and “the person.” However, in abrogating the marriage requirement for two people to be de facto custodians, the Supreme Court reasoned that (1) the definition of de facto custodian also includes the phrase “unless the context requires otherwise,” leaving room for trial courts to act in the best interest of the child in determining which individual or individuals qualify as the de facto custodian(s); and (2) KRS 446.020(1), regarding statutory construction, provides that “[a] word importing the singular number only may extend and be applied to several persons or things, as well as to one (1) person or thing . . . .” Even though KRS 403.270 refers to “the primary caregiver,” KRS 446.020(1) means it can refer to multiple primary caregivers, because the General Assembly knew of KRS 446.020(1) at the time it enacted KRS 403.270 and used no language indicating de facto custodian status be limited to only one person.


Digested by Nathan R. Hardymon

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