When Love, Not Marriage, Makes a Parent:
Kentucky Recognises Joint De-Facto Custodianship for Unmarried Cohabitants and Resets the Clock on Intervention

1. Introduction

In David Lemaster v. Kendra Stiltner (Supreme Court of Kentucky, 14 Aug 2025), the Court confronted two intertwined questions that resonate far beyond the litigants:

• Can an unmarried partner who has jointly parented a child with the child’s legal custodian acquire de-facto custodian status?
• When is a motion to intervene in a custody case “timely” if the would-be intervenor’s interests were previously protected by the now-deceased custodian?

Justice Thompson, writing for the majority, answers both in the affirmative, reversing the Court of Appeals and remanding for a full evidentiary hearing. The decision redraws Kentucky’s non-parent custody landscape by (a) extending joint de-facto custodianship to long-term, unmarried cohabitants and (b) pegging the timeliness of intervention to the moment the existing custodian can no longer protect the intervenor’s interests—here, the grandmother’s death.

2. Summary of the Judgment

• Standing. Lemaster had standing under two independent statutes: (i) as a “person acting as a parent” under the UCCJEA (KRS 403.800(13)), and (ii) as an alleged de-facto custodian under KRS 403.270.

• De-facto Custodian Theory. The Court holds that Lemaster may qualify as a de-facto custodian jointly with the child’s grandmother, Denise, notwithstanding their unmarried status, citing Krieger v. Garvin.

• Timeliness of Intervention. Applying the five Carter v. Smith factors, the Court rules that Lemaster’s motion—filed two days after Denise’s death—was timely because prior to her death his interests were adequately represented.

• Error Below. The family court abused its discretion by (a) denying intervention, (b) refusing an evidentiary hearing, and (c) summarily transferring custody to the biological mother without independent investigation or guardian ad litem input.

• Disposition. Reversed and remanded with instructions to (i) grant intervention, (ii) appoint a guardian ad litem, (iii) hold a full hearing on Lemaster’s de-facto status, and (iv) determine custody/visitation under the child’s best-interests standard.

3. Analysis

3.1 Key Precedents Cited

• Krieger v. Garvin (2019) – First recognised that two unmarried cohabitants could jointly be de-facto custodians. The present Court relies heavily on the “context requires otherwise” clause of KRS 403.270 to extend joint status to Lemaster and Denise.
• Burgess v. Chase (2021) – Held that a party parenting alongside a natural parent could not be a de-facto custodian. Distinction: Lemaster parented with a legal custodian, not a natural parent, so Burgess is inapposite.
• Mullins v. Picklesimer (2010) & Chadwick v. Flora – Clarified “person acting as a parent” and explained that physical custody need not be exclusive.
• Carter v. Smith (2004) – Five-factor test for timeliness of intervention, central to overturning the lower courts’ finding of delay.
• Diaz v. Moralez, Consalvi v. Cawood – Emphasised that de-facto status fills the void when natural parents abdicate; Court borrows the rationale to protect children’s stable placements.

3.2 The Court’s Legal Reasoning

1. Statutory Interpretation – “Context Requires Otherwise”. KRS 403.270 uses singular language (“the primary caregiver”). Invoking both the statute’s proviso and the interpretive canon of KRS 446.020(1) (singular includes plural), the Court concludes that two cohabiting adults can be treated as one parenting “unit.”
2. Distinguishing Parent v. Custodian. Because Denise was not a biological parent, the bar in Burgess (no de-facto status while co-parenting with a natural parent) does not apply. The absence of a parental superior-rights dilemma opens the door to Lemaster’s claim.
3. Standing Under UCCJEA. Lemaster met both prongs of “person acting as a parent”: (a) continuous physical care for far more than six months, and (b) a claimed right to legal custody via de-facto custodian status.
4. Timeliness Re-framed. Adequate representation by Denise tolled the duty to intervene. Only her death triggered the need. Hence, factor 3 of the Carter test (delay) is measured from death forward, not from 2015.
5. Child-Centred Imperative. Procedural defects below (10-minute hearings, absence of GAL, no Cabinet or friend-of-court reports) violated the court’s “paramount duty to protect children.” Substantive rights aside, the process itself required reversal.

3.3 Potential Impact

• Expanded Pool of Eligible Custodians. Unmarried romantic partners, long-term fiancés, and other cohabitants who jointly parent can now seek de-facto status—likely increasing third-party custody litigation.
• Timeliness Doctrine Clarified. Family courts must assess intervention delay relative to the point when existing representation ceases. This protects would-be custodians who had no reason to “pile on” earlier.
• Procedural Safeguards Elevated. Mandated use of guardians ad litem, Cabinet investigations, and evidence-based hearings before custody shifts from a non-parent custodian to a once-neglectful parent.
• Legislative Cue. The decision may spur statutory amendments clarifying plural de-facto custodians and codifying intervention timing.

4. Complex Concepts Simplified

De-Facto Custodian. Think of a “backup parent.” When a child’s actual parents drop the ball, the person who really feeds, clothes, and loves the child for a sustained period can be legally treated like a parent.

Person Acting as a Parent (UCCJEA). A safety-valve definition that gives someone who has physical care of a child and claims a right to custody the legal standing to appear in court, even if they are not a parent.

Timeliness in Intervention. Courts dislike late joiners. But if you were already protected by someone else in the lawsuit, your clock for “lateness” starts when that protection ends.

5. Conclusion

Lemaster v. Stiltner stakes out two consequential propositions: (1) couples need not exchange vows to share de-facto custodian status, and (2) a non-party’s duty to intervene ripens only when his or her aligned party exits the stage. Beyond its doctrinal shifts, the case is a cautionary tale about shortcutting child-custody procedure. Kentucky family courts must now provide full-bodied hearings, independent investigations, and child representation before uprooting established caregiving arrangements.

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