Can a Nonbiological Parent Pursue Child Custody?
When two people create a child, they are the biological parents to that child. They have equal and superior rights to custody of that child. Child custody and visitation rights may be hard to challenge by a nonbiological parent. There has to be strong evidence of absence, abuse / neglect toward the child, or a waiver of the right to custody.
If biological parents are unable to care for the child, a nonbiological parent may choose to pursue custody. They can become a de facto parent, which gives them the same rights as a biological parent. To become one, they must follow the requirements under KRS 403.270. They must have been the primary caregiver and financial supporter of a child who, within the last two years, has resided with the person for at least six months if the child is under 3 years of age or for at least one year if the child is at least 3 years old.
If the person can claim the above and prove that the child has been in their possession for the minimum amount of time listed, then they can serve as a de facto parent and enjoy custody of the child. When a non-parent does not meet the statutory standard of de facto custodian, under KRS 403.270, the non-parent pursuing custody must prove either of the following two exceptions to a parent’s superior right or entitlement to custody: (1) that the parent is shown by clear and convincing evidence to be an unfit custodian, or (2) that the parent has waived his or her superior right to custody by clear and convincing evidence.
Waiving Child Custody
Under Kentucky law, a parent has a superior right to the care and custody of their biological children. There has to be a factually legitimate and overwhelming need to disturb this right.
A parent can waive their right to child custody. A waiver occurs when a biological parent cedes their superior right of custody to the other parent. Courts must have “clear and convincing” proof that a waiver has occurred. However, “clear and convincing” is not clearly defined by Kentucky courts and is defined as something greater than a “preponderance of the evidence” and proof “beyond a reasonable doubt.”
Proving the Biological Parent is Unfit
Challenging a biological parents superior right to custody, can be hard to challenge, but not impossible. A truly unfit parent is a danger to their children. Therefore, the non-parent must prove that the parent is unsuitable and harmful. This could mean abusive and neglectful. The parent may have substance abuse problems.
The non-parent will be required to plead to the courts and build a case against the biological parent. They must present evidence of abusive and dangerous behavior, which may involve documentation, physical evidence, and witnesses.
Without a finding that the parent is unfit to have custody of a child or without clear and convincing evidence of the parent’s knowing and voluntary surrender of parental rights, a parent is entitled to custody.
Contact Us Today
Getting custody of someone else’s biological child is not an easy feat. There are strict requirements involved,
Get help with these types of cases from the Kentucky child custody lawyers at Velez Law, PLLC. We can guide you through the various processes with ease. Fill out the online form or click below link to schedule a consultation.
Recent Comments