Keith Doniphan Elston
Attorney at Law


(859) 225-2348

Free Initial Consultations


    All parents have a legal right to make decisions about the care of their children.  If parents do not wish to give custody to another person, no one can force them to do so.  However, when extraordinary circumstances exist that make it necessary for a court to decide whether it would be in the child's best interest to be removed from the parents and cared for by someone else, then the parent's rights are reduced.  In addition, parents can voluntarily decide to give someone else custody of their child.  there are two general types of custody: physical custody, and legal custody.

    Physical custody occurs when a grandparent, or other relative, takes care of a child without a court order to do so.  Physical custody simply means that a person is caring for a child for a period of time.  Physical custody does not grant any legal rights, but will contribute to qualifying for de facto custodian status.

    Child Custody

    Legal custody exists when a grandparent or other relative is given the legal right to take care of the child by a judge.  This is called a child custody determination.  A grandparent or other relative who wants legal custody has to go to court and prove to the judge that it is in the best interests of the child for someone other than the birth parents to have custody.  Once a court has granted custody to the grandparent or other relative, the parents will have to go to court if they want their children back. 

    The court will determine custody in accordance with the best interest of the child and equal consideration will be given to each parent and to any de facto custodian.  When determining the child's best interest, the court will consider all relevant factors, including:

    * the wishes of the child's parent or parents, and any de facto custodian, as to the child's custody;

    * the wishes of the child;

    * the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

    * the child's adjustment to his home, school, and community;

    * the mental and physical health of all individuals involved;

    * information, records, and evidence of domestic violence;

    * the extent to which the child has been cared for, nurtured, and supported by any de factor custodian;

    * the intent of the parent or parents in placing teh child with a de facto custodian; and

    * the circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

    In determining the best interest of the child, the court may also consider extraordinary circumstances, including:

    * mental illness of the child which renders the parent unable to care for the child;

    * acts of abuse or neglect;

    * alcohol or drug abuse;

    * domestic violence;

    * any crime by a parent which leads to the death or physical or mental disability of a member of the household; and

    * the existence of any guardianship of the parent due to partial disability.

    If the court finds that no extraordinary circumstances exist, the court has no reason to interfere or take custody away from the parents; the parents will keep custody of the child.


    This is an advertisement for legal services.  It is not, nor is it intended to be legal advice.  No attorney-client relationship is formed until a representation agreement is signed and fees or retainers paid.

    Legal custody is not permanent and can end when either of the child's parents asks the court to return legal custody to them or when it is no longer int he child's best interests to continue custody.  However, the court will hold a hearing to determine whether the circumstances, which convinced the court to change custody of the child, have changed.  If the court decides that circumstances have changed, the court must also decide whether it is not in the best interests of the child to be returned to the parents.

    Even if everyone agrees to the custody someone still needs to file a motion with the court for the judge to rule on.  Unfortunately, there are no "standard" forms for the motion.  If all parties are not in agreement it is essential that you be represented by an attorney experienced in family law litigation.