If you’re going through a divorce in the Commonwealth of Kentucky and you have minor children, one of the issues you’ll need to decide is child custody. In this article, we’ll cover all the key details you need to know.
- What are the Types of Child Custody in Kentucky?
- How is Child Custody is Determined in Kentucky?
- What is “The Best Interests of the Child” Standard?
- What is a Kentucky Child Custody Parenting Plan?
- Modifying a Custody or Visitation Order
- Kentucky Child Custody FAQs
What are the Types of Child Custody in Kentucky?
Kentucky courts decide many types of custody.
Physical custody refers to the parent responsible for a child’s physical care and control on a day-to-day basis.
Legal custody is the right to make crucial decisions on behalf of a child regarding education, culture, religion, and health.
Both of these types of custody can be temporary or permanent. Temporary custody is generally awarded to one parent during paternity or divorce proceedings.
Temporary custody usually leads to a contested hearing in front of a judge, with witness testimony and other evidence. After the hearing, a judge may decide to give permanent custody to one or both parties as part of a larger divorce settlement.
Custody can also be sole or joint custody. As these terms imply, sole custody gives authority to a single parent. Joint custody means that both parents will share in terms of a custody agreement.
When a child’s parents have joint legal custody, one parent is designated as the “primary residential parent” or “primary residential custodian.” This is a legal way of saying that the parents have equal decision-making rights, but the child spends more time at one residence than the other.
Read More: How to File for Divorce in Kentucky
How is Kentucky Child Custody Determined?
A custody case should be filed in a child’s “home state.” For Kentucky to be seen as the “home state,” a child must have lived in Kentucky with a parent for at least six months in a row right before you file the case.
If a child is under six months old but was born and lived here since birth, that makes Kentucky their “home state.”
Kentucky may also be considered the child’s home state if the child lives in another state right now, but Kentucky was the home state within six months before you filed the case, and you still live here. It doesn’t matter if the other parent lives outside Kentucky when figuring out your child’s home state.
In all cases, Kentucky judges must consider a child’s “best interests” when determining how to allocate custody.
Kentucky child custody law requires judges to begin all custody hearings with a presumption that joint custody is in the child’s best interest. Courts also prefer that parents work together to create a plan that is fair and does meet the best interest standard. However, many times parents disagree.
This can create a situation that could be helped by mediation. Mediation means involving a neutral third party to help negotiate an acceptable agreement.
If mediation fails, this often leads to a contested custody hearing in front of the judge. During a custody hearing, both parents can call witnesses, present other evidence, and testify. Courts can also gather evidence using a custody evaluator and rely on input from a Guardian ad Litem to provide added insights.
Following the hearing, a judge will issue a final order. This becomes a binding legal document that both parents must follow.
In most cases (absent substance abuse, domestic violence, etc.), all parents have a constitutional right to care for and control their children. If the court awards custody to one parent, the court will typically award the non-custodial parent visitation with the child.
Many Kentucky child custody courts have a standard parenting time schedule that might be used in your order.
The court can’t deny a parent visitation except after a hearing. Judges only suspend or deny visitation if the court finds it would seriously endanger the child’s physical, mental, moral, or emotional health.
A judge could order supervised parenting time. This means the parent can only see the child when the person supervising is there too. The supervisor could be a friend, relative, or another person the judge chooses.
What is the Uniform Child Custody Jurisdiction and Enforcement Act?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a federal statute that decides when Kentucky child custody courts can make and change “child-custody determinations.” It does not apply to child support cases.
If there is a custody order from another state, that state has “exclusive, continuing jurisdiction to modify.” Even if the child moves to a new home state, the custody order can’t be changed unless the original state loses jurisdiction or doesn’t enforce it. This usually happens when the noncustodial parent stays in the original state and the custodial parent and child move away.
Read More: Divorce Laws in Kentucky
What is “The Best Interests of the Child” Standard?
Kentucky child custody courts place the “best interests of the child” above all other determining issues when deciding a child custody case. To help make these decisions, the court may appoint an evaluator or a Guardian ad Litem to advocate for the child.
In this context, a judge must consider all of the following relevant factors before issuing a custody recommendation:
- The preferences of the child’s parents and any de facto custodian as to the child’s custody
- The child’s wishes of who they want to have custody
- The interaction and relationship the child has with their parents, siblings, and any other person that significantly affect the child’s best interest
- The motivation of the adults participating in the custody proceeding
- The child’s adjustment and continuing closeness to their home, school, and community;
- Mental and physical health of all individuals involved
- If domestic violence and abuse have been committed by one of the parties against the other party or a child of the parties. The judge would then consider:
- the extent to which the domestic violence and abuse have affected the child
- the extent to which the domestic violence and abuse have affected the child’s relationship with each party
- any efforts made towards completing a domestic violence program, treatment, or counseling
- The extent to which the children have been cared for and financially supported by any de facto custodian
- The intent of the parents in placing the child with a de facto custodian
- Reasons the child was placed under the care of a de facto custodian
- Whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence; and
- The likelihood that a party will allow the child to have frequent, meaningful, and continuing contact with the other parent or de facto custodian.
What is a Kentucky Child Custody Parenting Plan?
Kentucky courts are somewhat vague as to what goes into a parenting plan. In general, a good agreement will contain:
- How the parties involved will share significant life decisions and authority over their child.
- Where the children will reside and when they will spend time with each parent.
- How the parents will make changes to the agreement and resolve disputes.
- Other information about how the parents will continue to care for the child after separating.
- Additional information about how the parents will make the agreement work, such as how they will handle exchanges, communicate about the child, divide how they will attend school meetings, etc.
Parents can create a plan individually or cooperatively, but when they can’t reach an agreement, the court will step in and decide for them. When a court gets involved, it can employ invasive actions such as investigating both of you, questioning your friends and neighbors, and even questioning your children.
In some cases, it might be wise to get help from an experienced family law attorney to draft a viable plan.
Modifying a Custody or Visitation Order
Family life situations often change, which can impact how child custody orders are implemented. When changes meet a standard, either parent can petition the court to modify a custody or visitation order.
As a rule, the court favors stability, and Kentucky law requires that parents wait at least two years after the initial order before requesting a modification. It’s possible to get around this restriction if you can prove the child’s present environment may endanger their moral, emotional mental and physical health.
The parent requesting a modification must demonstrate to the court there has been a change of circumstances that make the current orders ineffective. For example, this may mean a parent’s job situation has changed, one parent has become chronically ill, or a parent wants to move to a different part of Kentucky or out of state.
To change a custody order, you must file a Motion to Modify Custody Order and file in the same court that gave you the original custody order. The judge will set a hearing date at which time the parent requesting the change will present evidence and witnesses to support a modification claim.
Kentucky Child Custody Law FAQs
Can a parent who committed violence get custody or visitation?
Under Kentucky law, a family court judge is generally supposed to assume that joint custody and equally shared parenting time are in the child’s best interest. That standard can change quickly if a domestic violence order is issued or was issued against one parent by the other in the custody hearing.
Regardless of whether a domestic violence order is in force, the judge must consider any finding that domestic violence and abuse have been committed by one parent against the other or the children.
The judge will review how domestic violence and child abuse have affected the child and the child’s relationship with each party. However, the judge will also consider efforts made by a parent towards completing any domestic violence treatment, counseling, or program.
If the judge determines there was domestic violence, but that parent should still have visitation, an arrangement will be created that would not seriously endanger the physical, mental, or emotional health of the children or the abused parent.
If both parents share custody, does anyone pay child support?
Typically, yes. Custody and support are separate issues. Support is based on parents’ incomes, and the time a child spends with each parent will influence the custody amount.
For example, even if joint custody is in place when one parent makes significantly more income than the other, they may have to pay child support.
Does the court consider what a child wants in custody issues?
In some cases, the court may consider a child’s preferences, but they are not obligated to grant preferences. Generally, the older or more mature a child is more likely to carry more weight. Ultimately, the judge must decide what’s best for the child.
Does Kentucky favor mothers over fathers in custody cases?
The courts must be gender-neutral when determining child custody cases in Kentucky.
Do grandparents have visitation rights in Kentucky?
Under the Kentucky unfit parent law, when a parent is unfit to care for a child, a nonparent can step in to provide care and love by proving the unfit claim.
Nonparents may become the de facto custodians if the child is under three and has lived with them for six months or lived with them for a year if the child is over three. To be considered a de facto custodian, they must have actual possession of the child and stand in the place of a parent. If they can establish this, de facto custodians enjoy the same standing in custody matters as biological parents.
Grandparents can be de facto custodians, but they can also file a petition to establish grandparent visitation. The court will then determine if it is in the child’s best interest to order such visitation.
Can a custodial parent move to another part of Kentucky or out of state?
If a joint custody order is in place and either parent wants to relocate, they must file a written notice with the court and have it served on the other parent. If the parents do not agree to the relocation, either parent can file a motion for change of custody or time-sharing within 20 days of the notice of relocation.
If both parents agree on the relocation, they can modify the time-sharing agreement and file an “agreed order” with the court. If not, the court will hold a hearing and base its decision on the child’s best interests. If the parent who wants to move can’t prove that the move is best for the child, the judge won’t let it happen.
If a parent asks to move, the judge considers:
- If both parents agree to the move
- If the child has become integrated into each parent’s family.
- How far away the new home is
- The reasons for and against the move
- To what degree each of the parents has been involved in the child’s life
- How the move impacts the non-moving parent’s ability to keep up a relationship with the child
- If the child’s current home is creating mental, physical, moral, or emotional health problems
- If the good things about the child’s move outweigh the bad things
Can a parent refuse to allow visitation by the other parent if child support payments are in arrears?
No. Parenting time can’t be used to enforce child support. You can take other actions if your child’s parent is behind on their child support payments. If you deny visitation, you’ll violate a court order, and you could face legal consequences.