Custody & Parenting Time

These questions and answers give general information about custody issues in Kentucky. This information is to help you understand things that may come up in a custody case. It does NOT cover every situation. Custody law is complicated and changes often. Every case is different. It is best to talk to a lawyer about your specific case.

What is custody?

Custody is the legal right and responsibility to care for and make decisions for a child. Custody may be decided by a judge:

• when parents get divorced
• when parents are unmarried but can’t agree
• sometimes between a third party and the parents.

What is the difference between legal custody and physical custody?

Legal custody means having the right to make important decisions about your child. You can decide where they go to school, what religion they are, and make major medical decisions.

Physical custody is about where the child lives.

Legal and physical custody can be either sole custody or joint custody.

What is the difference between sole custody and joint custody?

Sole custody means only one parent has custody.

Joint custody means the parents share custody.

If parents share legal custody, they make the important decisions about their child together.

If parents share physical custody, the child takes turns living with each parent. If parents share both legal and physical custody, then they must make important decision together, and the child lives with both parents.

What is parenting time?

Parenting time is the time the child spends with each parent. This is also called timesharing or visitation.

If a judge orders specific parenting time, all the details are in the court order. Sometimes a specific parenting time schedule works best if you and the other parent can’t easily talk to one another or agree on a schedule.

Many family courts in Kentucky have a standard parenting time schedule that might be used in your order.

If one parent is irresponsible or has hurt or threatened to hurt the child, the judge may order parenting time to be supervised by a third party. 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.

If the other parent and I can agree on custody and parenting time, does the judge let us decide what happens?

In Kentucky, the court supports parents working together whenever possible to create a custody and parenting time plan. If you both agree to the plan, you can present it to the court. The judge approves it if it is in the “best interests of the child.”

How are custody and parenting time decided by a judge?

In Kentucky, the judge starts out with the idea that the parents plan to share legal custody and have equal parenting time with the child. This is called a “presumption.”

If there is an order of protection (OFP) against a parent who is asking for custody, there is no “presumption” that joint custody and equal parenting time are in the best interest of the child.

To figure out custody between the parents, the judge decides what is in "the best interests of the of the child."

What does “best interests of the child” mean?

To figure out the “best interests of the child” a judge looks at things like:

• What each parent wants.  Sometimes the judge listens to what the child wants, depending on how old the child is.
• The relationship between the child and the parents.
• The child’s relationship with grandparents, siblings and or other important people.
• Why the adults in the case want what they want – their motivation.
• How comfortable and stable the child is in their home, school, and community.
• The mental and physical health of the people that are part of the custody case.
• Any past, present, or possible abuse by either parent. The abuse could be of the other parent or the child.

To help make these decisions, the court may appoint an evaluator or an advocate for the child.

What do I do if there is no custody order?

If there is no court order about your child, which parent has physical and legal custody depends on your situation. There are 2 common situations.

I am married to my child’s biological parent
If there isn’t a court order about custody, then both parents have physical and legal responsibility for the child until a court issues a custody order.

I am not married to my child’s biological parent
Unless there is a court custody order, both parents of a child have equal rights to physical possession of a child. This is true even if the parties are not married to each other.

What happens if the other parent doesn’t return our child after their parenting time is up?

If the other parent doesn’t return the child according to the custody order, then they are violating a court order. If you know where your child is, ask for help from a local law enforcement agency. Say you need help enforcing your custody order. NOTE: Keep a copy of your custody order in a safe place so that it’s easy to find. The officers might want to see it before helping you.

If you don’t know where your child is, contact the local law enforcement agency to file a report. Also, contact a lawyer as soon as possible to help you with other ways to get your child back.

How can I change a custody order?

To change a custody order, you must file a “Motion to Modify Custody Order.” You need to file in the same court that gave you the original custody order. This motion asks the court to change the custody order and says why you need it changed.

Once a motion to modify is filed, the judge sets a hearing date.The parent asking for the modification (change) has to show:

• that there has been a change in circumstances of the child or the other parent, and
• that it is in the child’s best interest that the prior order be changed.

It is hard to get a custody order changed in the first 2 years. You need to prove to the judge that:

• the current living situation puts the child’s physical, emotional, moral or mental health in danger, or
• the other parent placed the child with a de facto custodian. See information below about what is a de facto custodian.

My child's other parent is behind in child support. Can I keep them from parenting time?

No. Parenting time can't be used to enforce child support. There are other actions you can take if your child’s parent is behind on their child support payments.

What happens if a parent wants to move with the child?

If there is an order of joint custody and either parent wants to move, s/he has to file a written notice with the court and have it served on the other parent.

If the parents don’t agree about the move, either one can file a motion for change of custody or parenting time. The motion must be filed within 20 days of when the notice was served.

If the parents agree, they can make a written agreement to change the parenting time and file an “agreed order” with the court.

If one parent has sole custody and that parent wants to move, s/he has to file a written notice with the court and have the notice served on the other parent. If moving affects the court-ordered visitation, the parent that does not have sole custody can file a motion saying they object to the change in visitation. The motion must be filed within 20 days from when s/he was served with the notice.

How do judges decide if someone can move?

When a judge is deciding if a parent can move with a child, the most important thing they look at is what’s in the child’s best interest. 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 looks at these facts:

• if both parents agree to the move
• if the child has become integrated in(a part of)each parent’s family. The judge also looks at the willingness of each parent to let this happen
• how far away the new home is
• the reasons for and against the move
• how much each of the parents have been involved in the child’s life
• if the move would make it easy or hard for the parent not moving to keep up a relationship with the child
• if the child’s current home is a danger to the child’s mental, physical, moral, or emotional health, and
• if the good things about the child moving out weigh the bad things or not

What is a de facto custodian?

A de facto custodian is a person that is not the parent who has taken on the responsibility of raising a child. To be considered a de facto custodian, the child must have lived with the person for at least 6 months (if the child is under the age of 3) or for at least 12 months (if the child is over the age of 3). The person must also have been the child's primary caregiver and financial supporter during that time.

De facto custodians can be grandparents, stepparents, and other relatives. Non-relatives can also be a de facto custodian.

If someone is claiming to be a de facto custodian, does that affect my custody case?

The judge first decides if the person claiming to be de facto custodian meets the legal rules to be a de facto custodian. If the judge decides the person is a de facto custodian of your child, then the de facto custody has the same legal standing as the parent. This allows the de facto custodian to go to court and be a participant in the custody case. A de facto custodian can ask the judge for custody of your child.

What if I need a custody order but the other parent doesn’t live in Kentucky?

Your custody case should be filed in your child’s “home state.” For KY to be seen as the “home state,” your child must have lived in Kentucky with you for at least 6 months in a row right before you file the case. If your child is under 6 months old but was born and lived here since birth, that also makes Kentucky their “home state.”

Kentucky may also be considered as the child's home state if the child lives in another state right now, but Kentucky was the home state within 6 months before you filed the case and you still live here. It doesn’t matter if the other parent lives outside of Kentucky when figuring out your child’s home state.

What if child custody was already decided in another court?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) decides when Kentucky courts can make and change “child-custody determinations.” This includes custody and visitation orders. The UCCJEA does not apply to child support cases.

If there is a custody order from another state, that state has what is called “exclusive, continuing jurisdiction to modify.” This means that 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. Child custody rules between states are complicated. If you have questions, contact a lawyer for more information.

Can I do anything to keep my child from being sent to the other parent when I die?

The other parent usually gets custody of the child if you die. But, if you want another person to file for guardianship of your child after your death, you can put that in your will and the judge may consider your wishes. Talk to a lawyer about the best way state your wishes about custody.