Kentucky's New Presumption For Joint Custody and Equal Parenting Time

Blog Post | 107 KY. L. J. ONLINE | February 19, 2019

Kentucky's New Presumption For Joint Custody and Equal Parenting Time

Amanda K. Krugler[1] 

Kentucky recently became the first state to enact a child custody law with a rebuttable presumption of permanent joint legal custody and equal parenting time.[2] The change to the Kentucky statute was championed by the National Parents Organization, formerly the Foundation for Fathers and Families.[3] The revision comes right after a 2017 amendment requiring a presumption of joint legal custody and equal timeshare in temporary orders.[4] As a first–of–its–kind statute, the effects on Kentucky’s domestic relations’ decisions could be life–changing for parents and children. Which makes it all the more puzzling that such a monumental change was made without debate and only three Nay votes cast during the two separate floor votes in the Kentucky House for House Bill 528.[5]

Prior to the passage of the H.B. 528, Ky. Rev. Stat. Ann. § 403.270(2) began with, “The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian.”[6] The statute then went on to list nine factors the court must include in its analysis.[7] As amended by H.B. 528, after the above sentence  and prior to the list of factors, Ky. Rev. Stat. Ann. § 403.270(2) now includes:

Subject to Section 5 of this Act, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared patenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child’s welfare.[8]

The list of factors has also been amended and is nearly as significant as the addition of the rebuttable presumption.[9] For example, “[t]he wishes of the child as to his custodian” is now “[t]he wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child’s wishes.[10] Thus, where the Family Court Judge previously included the child’s wishes in their custodial decision, now they are required to investigate whether the child’s wishes are a result of improper influence in both the custodial and the timeshare decisions.[11]

Similarly, the prior statute required the judge to consider “[t]he child’s adjustment to his home, school, and community.”[12] The statute now reads, “[t]he child’s adjustment and continuing proximity to his or her home, school, and community.[13] By requiring the judge to consider the “continuing proximity,” the statute creates a new burden on a parent attempting to relocate with a child after divorce since the custodial and timeshare decision must include consideration of this factor creating a preference against relocation.[14]

H.B. 528 added two completely new factors to Ky. Rev. Stat. Ann. § 403.270.[15] First, the Family Court must now consider “[t]he motivation of the adults participating in the custody proceeding.”[16] The second factor begins with a new requirement but also includes a revision to a now deleted section and reads as follows:

The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian, except that the court shall not consider this likelihood if there is a finding that the other parent or de facto custodian engaged in domestic violence and abuse, as defined in Ky. Rev. Stat. Ann. § 403.720, against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.[17]

This factor must be assumed to apply to custodial and timeshare decisions that will not be joint custody or equal parenting time as it would seem redundant otherwise. It is likely meant to ensure that Family Courts “maximize” the parenting time by requiring a finding on this additional factor.[18]

The only provisions in H.B. 528 which resulted in an amendment were those relating to domestic violence.[19] The day the bill was heard in the House Judicial Committee Meeting Upon Adjournment, the record reflects that Mary Savage of the Kentucky Domestic Violence Coalition contacted the bill sponsor to request changes to protect domestic violence victims.[20] When the Senate Judiciary Committee heard the bill two weeks later, they passed it pending a Senate substitute to clarify and more specifically address how the new provisions should be used in custody cases affected by domestic violence.[21] The final reading and passage of H.B. 528, in both the House and Senate, occurred on April 13, 2018, less than two months after it was introduced into the House.[22]

Proponents of the law point to the disparity in custody awards as proof that the current best–interests of the child standard isn’t working and claim that biases in favor of mothers create “child estrangement.”[23] Proponents of shared parenting assert that when cases go before the judge, an efficient and equitable starting point is for each parent to be presumed to be entitled to equal legal and physical custody.[24] Proponents claim that this presumption protects parents from bias and unrestrained judicial discretion while increasing the well–being of the child.

Research agrees that children do best, and their outcomes improve, when they have two active parents in their lives.[25] Studies have found that child adjustment is most positively affected when the child has a chance to interact regularly with each parent in typical day–to–day settings such as meal time, hygiene, play, discipline, and bed–time.[26] Based on this research, proponents claim “it makes good intuitive sense” that increasing the amount of contact will increase the opportunity for quality interactions.[27] Despite the weight of the research pointing to the quality of the parenting time, not the quantity, proponents insist that most children would be best served by presuming the parents have equal parenting time.

Opponents of joint custody and shared parenting presumptions point out that the vast majority of custody cases, 90%, settle before trial meaning most parents come to an agreement on custody and parenting time without the need for a final hearing before a judge.[28] Therefore the remaining 10% of cases are cases in which the parents could not reach an agreement and are more likely to involve high–conflict parents. Further they claim that the presumption that shared parenting is in the best interests of every child is “an inappropriate tool for protecting children because too many parents are poor candidates.”[29] Research has identified some types of families in which shared parenting may be of particular concern, even detrimental. These families include those with high–conflict parents, families in which domestic violence has occurred, and families with a special needs child.[30] Finally, opponents cite the lack of durability of shared parenting arrangements. A recent study found that after four to five years only 49% of shared custody arrangements endured.[31] For high–conflict families, durability statistics were even worse, only 27% continued shared custody.

Moving forward, it will be critical for lawyers and litigants to understand the changes to Kentucky’s new law and how best to overcome the presumption in those cases in which equal parenting is not in the best interests of the child. Families with high–conflict parents, a history of domestic violence, or those with a special needs child are at the highest risk of a poor outcome and will be most in need of competent counsel. Family Law attorneys in particular will be faced with the challenges of overcoming the presumption to obtain appropriate custody and parenting time arrangements for their clients. In addition, attorneys will have to stay abreast of case law developing in this area as judges are confronted with making the determination as to what specific circumstances may overcome the presumption. States considering adopting their own presumption, similar to Kentucky’s, would be wise to investigate the matter fully with the input of their family court judges, local bar, and psychological experts. Kentucky has unwisely and drastically changed its statutory scheme away from a focus on the child and towards an emphasis on parents receiving equal time. And it has done so without debate, investigation, and only three Nay votes.

[1] J.D. expected 2020, University of Kentucky College of Law.

[2] Ryland Barton, Joint Custody Will Be the Default Under New Kentucky Law, WFPL (Apr. 29, 2018), https://wfpl.org/kentucky–courts–to–grant–joint–custody–by–default–under–new–law/. (last visited Oct. 6, 2018).

[3] Id.; Our History—Committed to Change, Nat'l Parents Org., https://nationalparentsorganization.org/our–history (last visited Oct. 7, 2018) (“National Parents Organization's ultimate goal is shared parenting in every state. With this, it will address and implement remedies for the host of financial, custody, and alienation issues the family courts address”).

[4] KY. Rev. Stat. Ann. § 403.280 (West, Westlaw through 2018 Reg. Sess.).

[5] Legislative Record, WWW Version, 2018 Gen. Assemb., Reg. Sess. (Ky. 2018), H.B. 528 Vote History, http://www.lrc.ky.gov/record/18RS/HB528/vote_history.pdf. (last visited Oct. 7, 2018).

[6] Legislative Record, WWW Version, 2018 Gen. Assemb., Reg. Sess. (Ky. 2018), H.B. 528 Bill History, http://www.lrc.ky.gov/record/18RS/HB528.htm. (last visited Oct. 8, 2018).

[7] Id.

[8] KY. Rev. Stat. Ann. § 403.270(2) (West, Westlaw through 2018 Reg. Sess.); Legislative Record, WWW Version, 2018 Gen. Assemb., Reg. Sess. (Ky. 2018), H.B. 528 Bill History, http://www.lrc.ky.gov/recorddocuments/bill/18RS/HB528/bill.pdf. (last visited Oct. 14, 2018). Section 5 is a new section created to exclude parties that have a domestic violence order in–force or pending from enjoying the presumption of joint custody and equal time share.

[9] Id.

[10] Id. (emphasis added).

[11] Family Court Face Map, Ky. Ct. Just. (Mar. 1, 2018), https://courts.ky.gov/resources/publicationsresources/Publications/P125FamilyCourtFaceMap.pdf. (last visited Oct. 14, 2018) (There are 72 counties in Kentucky that have at least one Family Court Judge assigned, 24 counties with a domestic relations commissioner but without a Family Court, and 24 counties without either a Family Court or a Domestic Relations Commissioner).

[12] Legislative Record, WWW Version, 2018 Gen. Assemb., Reg. Sess. (Ky. 2018), H.B. 528 Draft Bill, http://www.lrc.ky.gov/recorddocuments/bill/18RS/HB528/bill.pdf. (last visited Oct. 14, 2018); KY. Rev. Stat. Ann.. § 403.270(2) (West, Westlaw through 2018 Reg. Sess.).

[13] KY. Rev. Stat. Ann. § 403.270(2)(e) (West, Westlaw through 2018 Reg. Sess.) (emphasis added).

[14] Id.

[15] Legislative Record, WWW Version, 2018 Gen. Assemb., Reg. Sess. (Ky. 2018), H.B. 528 Draft Bill, http://www.lrc.ky.gov/recorddocuments/bill/18RS/HB528/bill.pdf. (last visited Oct. 14, 2018); Ky. Rev. Stat. Ann. § 403.270(2) (West, Westlaw through 2018 Reg. Sess.).

[16] KY. Rev. Stat. Ann. § 403.270(2)(d) (West, Westlaw through 2018 Reg. Sess.).

[17] KY. Rev. Stat. Ann. § 403.270(2)(k) (West, Westlaw through 2018 Reg. Sess.).

[18] KY. Rev. Stat. Ann. § 403.270(2) (West, Westlaw through 2018 Reg. Sess.).

[19] Senate Judiciary Committee, Ky. Educ. Television (Mar. 27, 2018, 12:42 PM) (video at Part II, 44:12), https://www.ket.org/legislature/?archive&program=WGAOS&nola=WGAOS+019266&part=2. (last visited Oct. 13, 2018); Legislative Record, WWW Version, 2018 Gen. Assemb., Reg. Sess. (Ky. 2018), H.B. 528 Senate Amendment http://www.lrc.ky.gov/recorddocuments/bill/18RS/HB528/SFA1.pdf. (last visited Oct. 14, 2018).

[20] House Judiciary Committee Upon Adjournment, Ky. Educ. Television (Mar. 13, 2018, 5:15 PM) (video at 26:00), https://www.ket.org/legislature/?archive&program=WGAOS&nola=WGAOS+019218. (last visited Oct. 13, 2018).

[21] Ky. Educ. Television, supra note 19 (video at 56:00).

[22] Legislative Record, WWW Version, 2018 Gen. Assemb., Reg. Sess. (Ky. 2018), H.B. 528 Bill History, http://www.lrc.ky.gov/record/18RS/HB528.htm. (last visited Oct. 6, 2018).

[23] Michigan Shared Custody Act About House Bill 4691 http://www.michigansharedcustody.org/about–bill.html; Maritza Karmely, Presumption Law in Action: Why States Should Not Be Seduced into Adopting a Joint Custody Presumption, 30 Notre Dame J.L. Ethics & Pub. Pol'y 321, 326 (2016).

[24] Id. at 341–42.

[25] William V. Fabricius, Priscila Diaz & Sanford L. Braver, Parenting Times, Parent Conflict, Parent–Child Relationships, and Children’s Physical Health, in Parenting Plan Evaluations: Applied Research for the Family Court 188, 191 (Kathryn Kuehnle & Leslie Drozd eds., 2012); Michael E. Lamb, Critical Analyses of Research on Parenting Plans and Children’s Well–Being, in Parenting Plan Evaluations: Applied Research for the Family Court 214, 221, (Kathryn Kuehnle & Leslie Drozd eds., 2012).

[26] Lamb, supra note 25, at 223.

[27] Fabricius, supra note 25.

[28] Karmley, supra note 23, at 330.

[29] Angela Marie Caulley, Equal Isn’t Always Equitable: Reforming the Use of Joint Custody Presumptions in Judicial Child Custody Determinations, 27 B.U. Pub. Int. L.J. 403, 448 (2018).

[30] Id. at 437–49; Lauren Mednick & Gerald P. Koocher, Co–parenting Children with Chronic Medical Conditions, in Parenting Plan Evaluations: Applied Research for the Family Court 247, 248 (Kathryn Kuehnle & Leslie Drozd eds., 2012).

[31] Jennifer E. McIntosh & Bruce Smyth, Shared–Time Parenting: An Evidence–Based Matrix for Evaluating Risk, in Parenting Plan Evaluations: Applied Research for the Family Court 155, 172, (Kathryn Kuehnle & Leslie Drozd eds., 2012). 

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