It Takes a Village to Raise a Child: Know Your Rights as a De Facto Custodian

The opioid crisis in Kentucky has had a devastating effect on families. A study has found that more than 1 in 10 Kentuckians knows someone who has experienced problems due to heroin. In 2013, 20,005 children were victims of abuse or neglect, representing 19.7 cases for every 1,000 children. This is an increase of 14.8% from 2012, in part due to the epidemic. As a result, more family members are taking care of children that are not their own sons and daughters. This entry is designed to educate those individuals about their rights in relation to those children.

Individuals providing for others’ children may be considered de facto custodians. If you have been the primary caretaker of a child under the age of three for at least six months, or you have been the primary caretaker of a child three years or older for at least one year, you can become a de facto custodian. It does not matter if you are unrelated to the child, only that you were the primary caregiver. However, you cannot be considered a de facto custodian until a court has found that you've met these elements by clear and convincing evidence.

Once a court determines that you are a de facto custodian, you are entitled to the same custody rights as the child's biological parents. For example, perhaps one of the child’s biological parents is missing and the other is incarcerated. One morning the missing parent suddenly appears and wants to take the child with them, what happens? Courts always consider “the best interest of the child,” with a strong presumption that biological parents should maintain custody. A de facto custodian is entitled to the same presumptions as a biological parent when considering what is in the best interest of the child. Therefore, a de facto custodian’s claim for custody is stronger than a nonparent biological relative's claim.

De facto custodians are not the same as adoptive parents. Adoption is the process by which the biological parents’ parental rights are terminated and the adopted child is issued a new birth certificate. De facto custodians may have to share custody with the biological parents, whereas adopted parents do not. For all legal matters, the courts will view an adopted child in the same light as a biological child for matters such as inheritance. A determination that you are a de facto custodian does not grant the child inheritance rights in the event of your passing while caring for the child.

If you are caring for a child and you wish to protect your rights, please contact an attorney. The attorneys at Barsotti & Manley, PLLC, are experienced in family law matters, and we can help you take the necessary steps to form and protect your family. Call us at (859) 429-3444.