The Post-Divorce-Parenting Glossary

Divorced-Parenting Term

Defacto Custody

What is de facto custody of a child?

De facto custody is a way of assigning legal custody and physical custody of a child to someone based on the time a child has been in the care of another person and the age of the child.  De facto custody can be third-party custody, meaning it is possible that de facto custody can be assigned to someone other than the child’s natural parents.

Why does de facto custody exist in family law?

De facto custody typically becomes necessary when both natural parents are seen as unfit by a family court.  A family court is bound by the best interest of the child standard, and if the natural parents are unfit, another custody arrangement is necessary.  If a child has been in the care of a third-party person, such as a grandparent or even an acquaintance, long enough for de facto custody to be implemented, a judge may order that person child custody if it is in the child’s best interests.

Depending on the state that the children live in, the amount of time they have been living with the caregiver, and the age of the child, de facto custody laws may allow the family court to decide that the caregiver be given sole custody.

What are the benefits of de facto custody laws?

States that have enacted de facto custody laws have done so to prevent a growing problem of children growing up without a parent and thus becoming a ward of the state.  By having someone who can be assigned as a de facto custodian, a person with a close bond to the child can get child custody based on 1) the time they have been the child's caregiver and 2) the age of the child.

De facto custody also can prevent a third-party from having to prove a parent is unfit in family court.  Instead, third-party custody can be assigned based on the time a person has been the primary caregiver of the child and the age of the child.

Who becomes the de facto custodian of a child?

De facto custodian is typically defined as the primary caregiver and financial support of a child who has resided with that person for six months or more if the child is under age three or one year if the child is three or older.  Because each state or jurisdiction might have its own laws, it is necessary to refer to the defacto custody laws in the specific state that you live in.

Does every state have de facto custody laws?

At the time of this writing, not every state has de facto custody laws.  The following states do have de facto custody laws in place as of this writing:


  • District of Columbia
  • Idaho
  • Indiana
  • Hawaii
  • Kentucky
  • Louisiana
  • Maine
  • Montana
  • Minnesota
  • South Carolina

Other states might have laws that are similar to de facto custody laws, but are not de facto custody laws per se.  New York, for example, has verbiage in its family law around physical custody that allows grandparents to seek custody of a child if it is in the children’s best interests and the children have been residing with the grandparents for more than two years.

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