Barber, Banaszynski & Hiatt, PSC

Child Custody Actions – Defining “Person Acting as a Parent”
posted by Rebecca Smither
Tags: In the news 

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Child Custody Actions – Defining “Person Acting as a Parent”

            Child custody is a highly litigated issue in Kentucky Courts.  On February 20, 2014, the Kentucky Supreme Court once again addressed the issue of child custody.  In Coffey, et. al., v. Wethington[1], two individuals sought custody of two minor children after their mother’s death, which the trial court ultimately granted.  The children’s biological father appealed to the Kentucky Court of Appeals. The Court of Appeals vacated the trial court’s judgment with instructions to dismiss the custody petition on the grounds that the original petitioners lacked standing according to KRS 403.800, et. seq.  The Supreme Court granted discretionary review on the issue of standing to file a petition for custody.  After a review of the record and applicable law, the Supreme Court reversed the decision of the Court of Appeals. 

            In Coffey, Appellee and Joann Wethington were married and had two children.  The couple divorced and per the terms of the divorce settlement, Appellee and Joann were to have joint custody of the children, with Joann designated “primary residential custodian.” 

            Over the course of the next 5 years, Appellee admitted that he did not visit with his children on a consistent basis.  When the Joann died in 2010, Appellee admittedly had not seen the children for at least 13 months.  The children admitted that they did not have a good relationship with their father, and were very close with their maternal grandmother and other extended family members.

            Appellants, who are Joann’s nephew and wife, were awarded emergency custody of the children.  Thereafter, they petitioned the Circuit Court for permanent custody of the children, which the trial court ultimately awarded.

            On appeal, Appellee father claimed that Appellants lacked standing to bring the custody action under KRS 403.800(13).  The Court of Appeals agreed.  However, on review, the Kentucky Supreme Court found that the issue of standing turned on whether the Appellants fall within the category of “person acting as a parent” as required by the statute.

            KRS 403.800(13) defines “person acting as a parent” as:

            A person, other than a parent, who:

            (1) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence within one (1) year immediately before the commencement of a child custody proceeding; and

            (2) Has been awarded legal custody by a court or claims a right to legal custody under the law in this state.

            The Supreme Court found that the term “person acting as a parent” has been redefined and broadened from its original definition in the Uniform Child Custody Jurisdiction Act (UCCJA) to include a person who has acted as parent for a significant period of time prior to the filing of the custody proceeding as well as a person who currently has physical custody of the child.

            The Court found that the six month requirement applies to any party seeking custody, whether he or she currently has or previously had physical custody.  Therefore, in order to be considered “a person acting as a parent” one must either have physical custody of the child or have had physical custody for a period of six consecutive months within one year of the commencement of a child custody proceeding.  The six month requirement does not apply to individuals with current physical custody of the child.  This clarification of the statutory language clears prior interpretations that in order to have standing to bring a child custody action, a non-parent must have both current physical custody of a child and said custody must have been for at least six consecutive months.

            Although the case is noted not to be cited as authority in any Court of the Commonwealth of Kentucky, it surely will not be the last word on child custody in Kentucky.  Issues surrounding custody and who has standing to bring such custody actions will ultimately arise time and time again in the courts. 

  If you have questions regarding child custody or any other domestic relations related matter, please contact our office at 502-254-2110.