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EspañolWho can file for custody?
Either parent can file for custody or a “de facto custodian” can file. “De facto custodian” means a person who has been the primary caregiver for, and financial supporter of, the child. Also, within the last two years, the child must have lived with this person for the following amount of time altogether:
- if the child is under three years old, a total of six months or more;
- if the child is three years or older or has been placed by the Department for Community Based Services, a total of one year or more.1
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 each parent has.2
1 KRS § 403.270(1)(a)
2 KRS § 403.270(1)(b)
What factors will a judge look at when deciding custody?
When deciding the child’s best interests, the judge will look at all relevant factors, including:
- the wishes of the child’s parents and any de facto custodian as to the child’s custody – see Who can file for custody? for definition of “de facto custodian”;
- the child’s preference for who s/he wants to have custody - 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;
- a determination 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:
- the extent to which the domestic violence and abuse have affected the child;
- the extent to which the domestic violence and abuse have affected the child’s relationship to each party;
- any efforts made towards completing a domestic violence program, treatment, or counseling;
- the extent to which the child has been cared for, nurtured, and financially supported by any de facto custodian;
- the intent of the parent(s) in placing the child with a de facto custodian;
- the reason(s) the child was placed under the care of a de facto custodian;
- 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.1
Note: If you leave the family home as a result of physical harm by the other parent or if you were seriously threatened with physical harm by the other parent, this is not supposed to be held against you.2
1 KRS § 403.270(2)
2 KRS § 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. What this means is 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 for his/her own protection or for the protection of the child who is the subject of the custody case.2
1 KRS § 403.270(2)
2 KRS § 403.315
Should I start a court case to ask for supervised visits?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to KY Finding a Lawyer to seek out legal advice.
