New Ruling for Standing to Pursue Custody of Your Children

Today's post is by Ashley Wiggins.  Ashley is a talented attorney at the Alford Law Office focusing her practice on Family Law and Estate Planning.

The Kentucky Supreme Court has made a recent ruling that will have an impact on who may have standing for custody of your children. A person acting as a parent can bring a custody action if the person has physical custody at the time the action is commenced. The consecutive six-month requirement only applies to persons who do not have physical custody at the time the custody action is commenced.

In the recent case of Coffey v. Wethington, the Coffeys, the nephew of the mother and his wife, sought custody of the children. The mother passed away unexpectedly. In April 2001, the mother and father divorced. Through the divorce, the parties were joint custodians with the mother being named primary residential parent and the father having visitation. As of the mother’s death in January 2010, the father had not seen the children in 13 months. The father admitted that he did not exercise his visitation on a regular basis nor did he maintain any consistent contact with the children. The children admitted that their relationship with their father was not good and that they have no relationship with his extended family. The father appeared at the temporary removal hearing but the court still entered a temporary custody order continuing the Coffey’s custody of the children. The Cabinet then performed a home evaluation on the father and the results were unfavorable. The Cabinet reported that the father had a prior history with the Cabinet wherein it had substantiated sexual abuse, physical abuse and neglect on behalf of the father regarding other minor children. In February 2010, the Coffeys filed a petition seeking permanent custody of the children. The trial court awarded joint custody to the father and the Coffeys. It directed that the children reside with the Coffey family and granted visitation to the father. The father then appealed the trial court’s decision to the Kentucky Court of Appeals. It reversed the trial court’s ruling stating that the Coffeys lacked standing to file the petition for custody under KRS403.800(13).

Prior to 2004, standing to bring custody was limited to KRS403.240 under the Uniform Child Custody Jurisdiction Act (UCCJA) to “a parent, defacto custodian of the child, or a person other than a parent only of the child is not in the physical custody of one of the parents.” The UCCJA was repealed in 2004 and was replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The issue before the Supreme Court was whether the Coffeys had standing under KRS 403.822(1)(b), specifically whether they were “person[s] acting as a parent.” This phrase has been redefined from the UCCJA definition to include a person who has acted as a parent for a significant period of time prior to the filing of the custody proceedings as well as a person who currently has physical custody of the child. The consecutive six-month requirement only applies to persons who do not have physical custody at the time the custody action is commenced. Here, the Coffeys had physical custody of the children at the time they filed their petition for custody. The consecutive six-month requirement, therefore, did not apply.

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