De Facto Custodian Act.

2018
STATE OF WYOMING
18LSO-0104
Numbered
1.2

HOUSE BILL

NO.
HB0015

De Facto Custodian Act.

Sponsored by:
Joint Judiciary Interim Committee

A BILL

for

AN ACT relating to children; providing standing for de facto custodians in custody, adoption and guardianship proceedings; specifying requirements and standards for awarding custody to a de facto custodian; specifying procedures; providing for de facto custody orders and termination of de facto custody; providing legislative purpose; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S.
3
‑
10
‑
101

through
3
‑
10
‑
10
8
are created to read:

CHAPT
ER
1
0
DE FACTO CUSTODIANS

3
‑
10
‑
101
.

Short title.

This act shall be known and may be cited as the
"
De Facto Custodian Act.
"

3
‑
10
‑
102
.

Purpose.

(a)

The purpose of this act is to:

(i
)

Give constitutionally and statutorily required deference to the decisions of fit parents in
child
custody
proceedings
brought by third parties;

(ii
)

Subject to
this
constitutionally and statutorily required deference and in circumstances where the necessity arises due to lack of demonstrated consistent participation
by a parent
, meet the needs and best interests of children for caring and stable homes by providing a flexible method by which a third party who has
cared for and supported a child may obtain legal and physical custody of the child
and where the
custody provides stability and continuity of care for the child and is in the child
'
s best interests.

3
‑
10
‑
10
3
.

Definitions.

(a)

As used in this act:

(i)

"
De facto custodian
"
means as provided in W.S.
3
‑
10
‑
104;

(ii)

"
Lack of demonstrated consistent participation
"
means a parent
'
s refusal or failure to comply with the duties imposed upon the parent by the parent
‑
child relationship;

(i
i
i)

"
Parent
"
means a person who has established a parent
‑
child relationship under W.S. 14
‑
2
‑
501;

(i
v
)

"
This act
"
means W.S.
3
‑
10
‑
101 through
3
‑
10
‑
108.

3
‑
10
‑
104
.

De facto custodian.

(a)

A de facto custodian

is

a person
who e
ither individually or together with
another person
has been the primary caretaker and primary financial supporter of
the
child
who
resides or had

resid
ed
with the
person
without a parent present and with a lack of demonstrated consistent participation by
both
parent
s
for
one (1) of the following time periods excluding any time after the filing of a petition under this act:

(
i
)

Six (6) months or more if the child is
less than
three (3) years of age; or

(
ii
)

One (1) year or more if the child is three (3) years of age or older.

(b)

In
determining a
lack of demonstrated consistent
participation
under subsection (a) of this section, a
court may consider parent involvement in:

(i)

Providing the child necessary food, clothing, shelter, health care and education;

(ii)

Creating a nurturing and consistent relationship for the child
'
s physical, mental or emotional health and development.

(c)

In determining if a
person
is a de facto custodian for the child, the court shall
consider
whether the child is currently residing with the
person
and, if not, the
period
of time since the child resided with the
person
.

(d
)

A person
shall not be deemed a de facto custodian if a child has resided with the
person
because:

(i)

The child was placed in the
person
'
s
care through a guardianship appointment under
title 3 of the Wyoming statutes
or other court order
; or

(ii)

The
person
is or was
residing or
cohabiting with, or is or was married to, a parent of the child.

3
‑
10
‑
10
5
.

Commencement of p
roceedings; petition for custody
; motion for intervention
.

(a)

A
person may initiate a
child custody proceeding
under this act by filing one (1) of the following
in the
district
court where the minor
child
resides or is present:

(i)

A
petition seeking a determination that
the person
is a de facto custodian and seeking custody of a child;

(ii)

A
motion seeking permissive intervention under rule 24 of the Wyoming rules of civil procedure, in a pending guardianship
,

adoption
or custody proceeding
seeking a determination that
the person
is a de facto custodian and seeking custody of a child.

(b)

A petition or motion
filed under this section
shall state and allege:

(i)

The name and address of the
petitioner or intervenor

and any prior or other name used by
th
e
person
;

(ii)

The name of the
child
'
s
parents
or guardian and any prior or other name used by the
parents or guardian
and known to the petitioner or intervenor;

(iii)

The name, age and address of each child for whom custody is sought;

(iv)

The relationship of the petitioner or intervenor to each child;

(v)

The basis for jurisdiction asserted by the petitioner or intervenor;

(vi)

The current legal and physical custodial status of each child, whether a proceeding involving custody of the child, including a proceeding for an order of protection under W.S. 14
‑
3
‑
430,
14
‑
6
‑
230 or 14
‑
6
‑
430,
is pending in a court in this state or elsewhere, and a list of all prior orders of custody
, parentage
or guardianship, including temporary orders, if known to the petitioner or intervenor;

(vii)

Whether either parent is a member of the armed services
and whether either parent has been called into active service outside of the state of Wyoming
, if known to the petitioner or intervenor;

(viii)

Whether the child is an Indian child as defined in the
federal
Indian Child Welfare Act

and, if so, a statement setting forth with particularity the notice provided to the appropriate tribal court;

(ix)

The length of time each child has resided with the petitioner or intervenor and the nature of the petitioner
'
s or intervenor
'
s role in caring for each child;

(x)

The financial support provided by the petitioner or intervenor for each child;

(xi)

Whether physical
or legal
custody
, or both
should be granted
solely
to
the petitioner or intervenor
or shared with
any person who responds to a petition or motion to intervene filed under subsection (a) of this section
;

(xii)

The reasons why it is in the
child
'
s
best interests for the petitioner or intervenor to have custody
of the child
.

(c)

The district court may transfer jurisdiction of a petition for custody to the juvenile court if the child is under the prior and continuing jurisdiction of the juvenile court.

3
‑
10
‑
10
6
.

Notice
of petitions and motions
; governed by rules of civil procedure.

(a)

Notice of filing a petition
or motion under W.S.
3
‑
10
‑
105(a)(i)
and any hearings on the petition
or motion
shall be served on:

(i)

The parents of the
child
;

(ii)

T
he guardian or legal custodian, if any, of the child;

(iii)

The child, if the child is at least twelve (12) years of age;

(i
v
)

The child
'
s tribe under federal law, if the child is an Indian child as defined in the Indian Child Welfare Act
.

(b)

In addition to the notice required under subsection (a) of this section, n
otice shall be served on any other person as ordered by the court.

(c)

Notice
under this section
shall be given
in accordance with the Wyoming Rules of Civil P
rocedure
or
as ordered by the court.

3
‑
10
‑
10
7
.

Hearing required; a
ppointment of custody to de facto custodian.

(a)

The court shall hold a hearing on
any
petition or motion
filed in accordance with W.S.
3
‑
10
‑
105(a)
before awarding custody of a child to a de facto custodian.

(b
)

In
a hearing required by this section and before the court considers whether custody with the de facto custodian is in the child
'
s best interests,
the parties
shall
stipulate to, or the court
shall
find, facts establishing by clear and convincing evidence that the
petitioner or intervenor
is a de facto custodian
as provided in
W.S.
3
‑
10
‑
10
4
and that there is a lack of demonstrated consistent participation by the child
'
s parents that creates a compelling state interest sufficient to justify granting the petition or motion.

(
c
)

After a finding by the court or stipulation by the parties that
the
petitioner or intervenor
is a
de facto custodian, the
petitioner or intervenor
shall prove by a preponderance of the evidence that it is in the
child
'
s best interests
to be in the custody of the de facto custodian.

(d)

A court may consider any of the following in
determining whether the
petitioner or intervenor
has
prove
d that it is in the
child
'
s
best interests to be in the custody of the de facto custodian:

(i)

The circumstances under which the child was allowed to remain in the care of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent to seek work or to attend school;

(ii)

Whether the child is currently residing with the de facto custodian and, if not, the length of time since the petitioner or intervenor last functioned as
the child
'
s de facto custodian
;

(iii)

Any other factor the court deems necessary and relevant in determining whether it is in the child
'
s best interests to be in the custody of the de facto custodian.

3
‑
10
‑
10
8
.

De
facto custodian order;
determination of decision making authority;
access to records; termination of de facto custodianship.

(a)

A court may enter an order granting
custody of a child to
a de facto custodian in the same manner as it would
grant such custody to a parent
.
T
he court shall determine
the respective responsibilities of the de facto custodian and the
parent
s
and
shall
make any
necessary order, including orders that address
:

(i)

The child
'
s physical custody and residence;

(ii)

The respective authority of the de facto custodian and parents to make nonemergency decisions for the child, including those
decisions
regarding education,
health care,
religious training and personal care decisions;

(iii)

Visitation
and
its
terms including

whether it is supervised or unsupervised
;

(iv)

Child support as determined under W.S. 20
‑
2
‑
301 through 20
‑
2
‑
315;

(v)

Any other matters reasonably affecting the child
'
s best interests.

(b)

An order granting custody to a de facto custodian is subject to the same continuing jurisdiction of the court and is modifiable in the same manner as an order granting custody to a parent.

(
c
)

A de facto custodian who has been granted sole or joint legal custody of a child shall have access to records pertaining to the child who is the subject of the de facto custodianship to the same extent as a parent would have such access pursuant to an order of legal custody.

(
d
)

A party to a
proceeding granting custody to a de facto custodian
under this act
may move for the termination of the custody order. A
party moving for termination shall show by a preponderance of the evidence that termination is in the child
'
s best interests. A motion for termination may include a proposal for the continuing custody of the child.

(
e
)

A de facto custodian may move for permission to resign as the de facto custodian.
A de facto custodian moving to resign shall show by a preponderance of the evidence that termination is in the child
'
s best interests.
A motion to resign may include a proposal for the continuing custody of the child.

(
f
)

After notice and hearing on a motion
under subsection (
d
) or (
e
) of this section,
the court may terminate the custody of the de facto custodian and may make any
other
orders that may be appropriate in the
child
'
s
best interests.

Section 2
.

A person who is seeking adjudication that he is a de facto custodian may count any time period including any time before the effective date of this act where he was the primary caretaker and primary financial supporter of the child for purposes of satisfying the requirements of W.S. 3
‑
10
‑
104(a).

Section 3
.

This act is effective July 1, 2018
.

(END)

1
HB0015