KRS 403.270: Custodial issues -- Best interests of child to be determining factor --

Rebuttable presumption that joint custody and equally shared parenting time

is in child's best interests -- De facto custodian.

(1) (a) As used in this chapter and KRS 405.020, unless the context requires

otherwise, "de facto custodian" means a person who has been shown by clear

and convincing evidence to have been the primary caregiver for, and financial

supporter of, a child who within the last two (2) years has re sided with the

person for an aggregate period of six (6) months or more if the child is under

three (3) years of age and for an aggregate period of one (1) year or more if

the child is three (3) years of age or older or has been placed by the

Department for Community Based Services. 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.

(b) A person shall not be a de facto custodian until a court determines by clear

and convincing evidence that the person meets the definition of de facto

custodian established in paragraph (a) of this subsection. Once a court

determines that a person mee ts the definition of de facto custodian, the court

shall give the person the same standing in custody matters that is given to

each parent under this section and KRS 403.280, 403.340, 403.350, 403.822,

and 405.020.

(2) The court shall determine custody in accordance with the best interests of the child

and equal consideration shall be given to each parent and to any de facto custodian.

Subject to KRS 403.315, there shall be a presumption, rebuttable by a

preponderance of evidence, that joint custody and equ ally shared parenting time is

in the best interests of the child. If a deviation from equal parenting time is

warranted, the court shall construct a parenting time schedule which maximizes the

time each parent or de facto custodian has with the child and i s consistent with

ensuring the child's welfare.

(3) In making a determination of custody, the court shall, prior to consideration of any

other factors enumerated in subsection (4) of this section:

(a) Consider any allegations of:

1. Domestic violence and abuse as defined in KRS 403.720; or

2. An abused or neglected child as defined in KRS 600.020;

committed by one (1) party against another party or a child of the parties; and

(b) Make written findings on the record as to the impact, if any, of the allegations

described in paragraph (a) of this subsection on the child.

(4) After making the consideration required in subsection (3) of this section, the court

shall consider all other factors relevant to the determination of custody including:

(a) The wishes of the child's parent or parents, and any de facto custodian, as to

his or her custody;

(b) The wishes of the child as to his or her custodian, with due consideration

given to the influence a parent or de facto custodian may have over the child's

wishes;

(c) The interaction and interrelationship of the child with his or her parent or

parents, his or her siblings, and any other person who may significantly affect

the child's best interests;

(d) The motivation of the adults participating in the custody proceeding;

(e) The child's adjustment and continuing proximity to his or her home, school,

and community;

(f) The mental and physical health of all individuals involved;

(g) A finding by the court that domestic violence and abuse, as defined in KRS

403.720, has been committed by one (1) of the parties against a child of the

parties or against another party. The court shall determine the extent to which

the domestic violence and abuse has a ffected the child and the child's

relationship to each party, with due consideration given to efforts made by a

party toward the completion of any domestic violence treatment, counseling,

or program;

(h) A finding by the court that a party has maliciously made an intentionally false

allegation of child abuse which has no basis in fact and which the party knew

had no basis in fact against another party;

(i) The extent to which the child has been cared for, nurtured, and supported by

any de facto custodian;

(j) The intent of the parent or parents in placing the child with a de facto

custodian;

(k) The circumstances under which the child was placed or allowed to remain in

the custody of a de facto custodian, including whether the parent now seeking

custody was previously prevented from doing so as a result of domestic

violence as defined in KRS 403.720 and whether the child was placed with a

de facto custodian to allow the parent now seeking custody to seek

employment, work, or attend school; and

(l) The likelih ood a party will allow the child frequent, meaningful, and

continuing contact with the other parent or de facto custodian, except that the

court shall not consider this likelihood if there is a finding that the other

parent or de facto custodian engaged in domestic violence and abuse, as

defined in KRS 403.720, against the party or a child and that a continuing

relationship with the other parent will endanger the health or safety of either

that party or the child.

(5) The abandonment of the family residence by a custodial party shall not be

considered where that party was physically harmed or was seriously threatened with

physical harm by his or her spouse, when the harm or threat of harm was causally

related to the abandonment.

(6) If the court grants custody to a de facto custodian, the de facto custodian shall have

legal custody under the laws of the Commonwealth.