How does child custody work in a Kentucky divorce?
In Kentucky, figuring out how legal and physical custody of children under 18 should be assigned is according to what would be in the best interest of the children. The law presumes that joint custody and equal parenting time is in their best interest. The court may choose a different arrangement if the evidence supports deviating from this default. (9)
What factors does the court consider when determining custody?
The court is allowed to consider a wide range of factors when determining how custody will be split among parents (KRS 403.270). Paraphrased, those factors are:
- What the parents’ preferences are
- What the child wants, taking into account any undue influence by one parent or the other
- The relationship the child has to their parents, siblings or others who play a meaningful role in their life
- The parents’ motivations
- The child’s adjustment and continuing proximity to his or her home, school, and community
- The mental and physical health of parents and child
- Whether there’s a history of domestic violence
- The extent to which the child has been cared for by any de facto custodian (e.g. a grandparent stepping in when parents were unable to care for the child)
- The intent of the parent or parents when placing the 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
- The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian
What is legal custody vs. physical custody?
Physical custody is when the children live with you and you are responsible for making everyday decisions, such as what they have to dinner, what toys they are allowed to have, etc.
Legal custody is the right to decide on things that affect your children’s long-term wellbeing. For example, regular medical care, education, religion, etc. (10)
What are the possible outcomes of a custody decision?
There are a variety of combinations of physical and legal custody. Parents might have joint legal and physical custody of children, with the physical custody dictated by a timesharing agreement. Or, one parent might have sole physical custody while legal custody is split. Or, one parent might have sole physical custody and sole legal custody. And there are yet more combinations depending on your specific circumstances.
A traditional arrangement was for joint legal custody and one parent to have sole physical custody. Today, however, it’s becoming more common to see joint legal and physical custody.
What is a timesharing agreement or parenting time schedule?
A timesharing agreement or parenting time schedule lays out when each parent will have physical custody of the children and act as their day-to-day parent. The court provides an example for reference.
The court will require parents to agree to a parenting time schedule, or otherwise the court will decide on one. If you and your spouse can agree on a parenting schedule, that is almost always better than having the court decide, since the court will tend to stick to the example guidelines in the court rules. Do not expect the court to use its imagination when creating a schedule. You’re better off making a schedule that works for you and your spouse, taking into particular preferences you and your children have.
If you can’t agree, the court will often require mediation. This may add cost to your divorce, but it’s still better than relying on the court to decide on a parenting time schedule.
If you still can’t agree, even after mediation, the court may appoint an outside expert (e.g. a social worker) to investigate and make a report to the court, which will probably substantially influence the judge’s decision about timesharing.
What if I’m not granted custody of my children and not given any parenting time?
According to Kentucky law, “A parent not granted custody of the child and not awarded shared parenting time…is entitled to reasonable visitation rights [unless this would endanger the child].” (11)
Some counties have visitation standards, and you can find out if yours does by calling your county clerk’s office.
A common default visitation schedule is every other weekend, one evening during the week, and holidays split between the parents.
What are parenting conduct orders and how do they work?
Either as Temporary Orders while the divorce is happening or as ongoing Orders after the divorce has been finalized, the court may issue Parenting Conduct Orders that affect what parents are allowed to do.
The court provides a list of example parenting conduct orders in its Family Court Rules. These are only examples, provided to help illustrate what the court might order.
You may, when filing for divorce or at another time, make a motion for the court to issue parenting conduct orders.
What is the Families in Transition course?
Kentucky will require families with children 6 to 14 years old, and many families with children under 18 years old, to attend a class called Families in Transition. Offered across the state on a regular basis, this course helps families navigate the divorce process and, in particular, helps children understand and cope with the challenges they are facing.
Bullitt County Attorney John H. Schmidt, in the context of writing about his own divorce, describes the Families in Transition course as helpful:
“I learned some things even though I am a family law attorney…My kids thought it was very helpful. My children told me that they learned that they did not cause the divorce, they could not prevent the divorce, and divorce is the result of issues between the adults. They were greatly relieved.”
Bullitt County Attorney, John H. Schmidt
The course costs between $40-75 per adult – children are free. For example, in Lexington it’s $75, Jefferson County $40, and Bullitt County $65. If your court fees have been waived (i.e. you case is in forma pauperis) the fee may be less.
If my case goes to trial, will my children have to testify as witnesses?
Testifying in court during their parents’ divorce proceedings can be traumatic for children. To quote from a 2013 paper published by law firm Bingham Greenebaum Doll, LLP:
“Many people incorrectly assume that at a certain age children have an absolute right to pick the parent with whom they will live. While the child’s preference as to custodial parent is never binding on the court’s decision, Kentucky law does require that the child’s wishes be considered as part of the “best interests of the child” analysis. However, even where the child’s input is relevant, it is highly unusual for a child to be called as a witness. Generally, the wishes of a child are conveyed to the judge indirectly through a mental health professional or GAL who sensitively discusses custody matters with child, and then the professional testifies as to the child’s input. Other times…the judge meets privately and informally with the child, usually outside the presence of the parents or their attorneys.”
Divorce in Kentucky: What to expect and best practices to follow during the divorce process (10)
Am I allowed to move out of state with my children?
The court will not approve or deny a move per se. What the court cares about is whether timesharing or visitation orders will be affected and, if so, whether they need modification.
Before moving you must file a notice with the court and serve your former spouse. This notice must describe where and when you will move, and any effect the move will have on timesharing or visitation orders. (12)
If you have sole custody, and the move will affect court-ordered timesharing, then the other parent has 20 days from when they were served to file a motion contesting the change in timesharing.
If you share joint custody, you must file a motion to modify the existing timesharing order if timesharing will be affected by the move. You must do this within 20 days of filing the notice. The other parent may file a motion contesting your proposed changes.
In each case, you should try to file with the court well in advance of the 20 day limit in case you can’t work out an agreement with the other parent and need to have a hearing in court.
However, if the relationship has seen domestic violence, these rules may not apply.
What if I don’t file with the court and/or don’t serve notice to the other parent?
You risk the court punishing you and possibly changing the custody or timesharing arrangement.
FAQs
Probably not, as long as it did not involve your kids.
I see or saw a psychiatrist. Will that affect my chances of being granted custody?
Simply seeing a psychiatrist is not grounds for losing custody of your children. Taking care of your own health so you are more capable of taking care of your kids is something you could present as evidence that you are responsible.
Can I legally change my children’s last names?
Not without petitioning the court and serving notice to their other parent.