concurring in part and dissenting in part.
Believing that the majority is writing with a wide legislative brush, sweeping away the precedents of this Court, I respectfully dissent as to the majority opinion concerning partial waiver.
KRS 405.020 and KRS 403.270, our custody statutes, provide standing in child custody claims only for parents and de facto custodians. Under the statutory scheme passed by our legislature, Appellant has neither standing nor the right to make a custody claim in this case. Neither does she have a claim under the long standing judicially imposed principle of waiver. The majority in this case in effect breaks out a totally new concept of a partial waiver to arrive at a result-driven decision.
The judicial principle of waiver, as applied to child custody, first saw the light of day in Van Wey v. Van Wey, 656 S.W.2d 731 (Ky.1983). However, this principle was first conceived as far back as sixty years ago in Rose v. Ledford, 306 Ky. 662, 208 S.W.2d 957 (1948). In these embryonic cases, right up to today, surrender of custody and separation were the critical lynehpins of the waiver concept. I submit that this is because the Court recognized that there was no statutory basis for such a theory, and it had to be construed tightly to protect the rights and interests of the natural parents.
We continued to speak in this vein in Greathouse v. Shreve, 891 S.W.2d 387 (Ky.1995). The Greathouse majority stated that an intentional or voluntary relinquishment of a known right to custody occurs “where the party seeking custody has surrendered the care and custody of the child to another, particularly a grandparent, and has acquiesced in the child’s remaining there for an extended period of time.” Id. at 389 (emphasis added). The waiver as to non-parent claims to custody outside the statutory authority was strictly confined to one of the parents surrendering and relinquishing care and custody of the child— clearly not the case here. The series of *582cases applying this principle have dealt only with grandparents, biological parents, or adoptive parents.
A brief review of these cases will clearly show how the majority today unhinges all precedents on this issue. In doing so, it severs the legal standing of parenthood from the safe mooring of the law.
In Shifflet v. Shifflet, 891 S.W.2d 892 (Ky.1995) (mother v. paternal grandmother), rendered at the same time as Great-house, Justice Leibson warns: “The parent’s superior right of custody is not lost to a non-parent, including a grandparent, simply because a child is left in the care of the non-parent for a considerable length of time.” Id. at 894. In addition, because a parent’s superior right of custody has both constitutional and statutory underpinnings, proof of waiver must be clear and convincing. Id.
In Moore v. Asente, 110 S.W.3d 336, 358 (Ky.2003) (birth parents v. adoptive parents), this Court stated:
Kentucky’s appellate courts have recognized not only that “parents of a child have a statutorily granted superior right to its care and custody,” but also “that parents have fundamental, basic and constitutionally protected rights to raise their own children.” And, because we would necessarily abrogate those rights if we were to resolve custody disputes on a “best interest of the child” standard after allowing the nonparent to obtain standing by mere possession of the child, we hold that “physical custody” for the purposes of establishing standing requires more than “actual possession and control of a child” at the time a custody action is commenced — i.e., a showing “that the parent has somehow voluntarily and indefinitely relinquished custody of the child.” (Emphasis added and internal citations omitted.)
In Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky.2004) (maternal grandparents v. father), we stated: “Without a finding that the parent is unfit or without clear and convincing evidence of a knowing and voluntary surrender of parental rights, a parent is entitled to custody.” This Court looked at five key factors in making that determination. After doing so, this Court found that “[c]ase law clearly demonstrates that allowing [child] to live with her grandparents and [father’s] sporadic participation in [child’s] upbringing does not constitute express waiver.” Id.
The Vinson factors were followed as late as three years ago by the Kentucky Court of Appeals in Boone v. Ballinger, 228 S.W.3d 1 (Ky.App.2007), a case dealing with a custody fight between a biological father and the “married father.” Our distinguished sister, Justice Abramson, writing then for that court, found “all of these factors invariably present” in that case. Id. at 11.
What are these Vinson factors?
They all assume separation of the child from the natural parent and are consistent with the line of Kentucky cases which subscribe to the notion of separation.
These factors are: (1) the length of time the child has been away from the parent; (2) circumstances of separation; (3) age of the child when care was assumed by the non-parent; (4) time elapsed before the parent sought to claim the child; and (5) frequency and nature of contact, if any, between the parent and the child during the non-parents custody. Vinson, 136 S.W.3d at 470.
It is beyond dispute that no separation is present in this case; that the child has not been away from the parent; that care was never exclusively assumed by a non-parent; and that contact has remained uninterrupted. In other words, none of *583the Vinson factors are present. The majority today totally, casts aside these well-reasoned and entrenched considerations without as much as a wave of the hand.
By not requiring separation from parent as a requirement of waiver, the majority introduces a new principle in custody cases which amounts to a partial waiver. This judicial engineering undermines the statutory protection of the parent and opens the door wide for all third parties who can show shared participation in child rearing. This new found rule of law will — in an age of working parents and shared nurturing — equally fit as many grandparents, uncles, aunts, neighbors, and even babysitters, as it does Appellant and others who may “co-parent” a child. We cannot, by judicial edict, just open wide the door and wave everyone in who wishes to parent a child.
Lastly, the majority ruling here today edges us precariously close to running afoul of the U.S. Supreme Court case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and our own Court of Appeals decision in Scott v. Scott, 80 S.W.3d 447 (Ky.App.2002), following that lead. “Very simply,” said the Kentucky Court in quoting from Troxel, “the Due Process clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 450. Those cases boldly restate that the right of a parent to his or her child is perhaps the most basic of all human rights. Our legislature has dutifully circumscribed those limited exceptions to these rights.
If there is one thing that the children of our Commonwealth need today it is stability-
This is a destabilizing decision.
We, in the first part of the 21st century, find ourselves in a torrent of fast moving waters of change in American domestic life. We are constantly confronted, as here, with domestic arrangements that the writers of our family and child custody laws never imagined thirty years ago. How to deal with these changes are political concerns. We should not, in order to accommodate unique and peculiar situations, impose our own whim upon a situation that is a legislative matter.
MINTON, C.J., and SCOTT, J., join this opinion.