Child Custody and Visitation

Legal Custody

We find that clients often insist on full legal custody (a.k.a sole custody) without understanding the difference between legal custody and physical custody. Legal custody has to do with a parent’s right to make significant decisions on behalf of the child or children such as what school or daycare the children will attend. A parent with sole custody has the exclusive legal authority to make significant decisions on behalf of the parties’ children.

Because Kentucky’s divorce laws and family court judges generally favor both parents being involved in major decisions affecting the children’s lives, it is only in extreme cases that a parent is granted sole custody. Usually joint custody is awarded so that both parents can participate in the major decision-making.

Physical Custody

When it comes to physical custody (a.k.a. timesharing or visitation rights), courts rarely ever award truly equal or joint physical custody. Rather, one parent will be the primary physical custodian (a.k.a primary residential custodian), which is simply the parent who the Court decides the children will spend the most time with.

Figuring out and obtaining the most ideal custody and visitation arrangement can be a very complicated and tedious process, though it does not have to be. If the parents agree on custody and visitation, then we can draft the agreement without the need for mediation and/or litigation. If it is clear that an agreement is going to be difficult or impossible to reach, then our firm has experience with extremely complex custody and visitation litigation and we will not hesitate to advocate on your behalf for the custody and visitation / timesharing arrangement that is in the best interest of for you and your child(ren).

Frequently Asked Questions

  • What if the court awards joint custody but the other parent and I cannot agree on what school our child will go to or something of that nature?
    • When parents who share joint custody cannot agree on things such as what school their child or children will attend, or what religion the children will participate in, then it may be necessary to bring the issue before the Court for its ruling. In such situations, our firm uses our experience to analyze and assess the client’s situation and then give advice accordingly. If we cannot resolve the situation with the other parent, then we simply take the matter to the Court for its determination on the issue.

  • What things will the court consider when determining legal custody?
    • When determining legal custody, the court essentially has one question that it is concerned with: What custody arrangement is in the best interest of the child or children? KRS 403.270(2) sets forth the various factors Kentucky Courts consider when attempting to determine what custody arrangement it believes will be in the best interest of the child(ren). The factors the court will look at when determining custody include the following:
        a. The wishes of the child's parent or parents, and any de facto custodian, as to his custody
        b. The wishes of the child as to his custodian.
        c. The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests
        d. The child's adjustment to his home, school, and community
        e. The mental and physical health of all individuals involved
        f. Information, records, and evidence of domestic violence as defined in KRS 403.720
        g. The extent to which the child has been cared for, nurtured, and supported by any de facto custodian
        h. The intent of the parent or parents in placing the child with a de facto custodian
        i. The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school

      After two years, the modification is based on what is found to be in the best interest of the child after the court considers the factors set forth in KRS 403.270.

  • How can I change from joint custody to sole custody?
    • If you want to modify your custody arrangement within two years from the date that the initial custody decree was entered, then there are only two ways that the Court will grant modification, as per KRS 403.340(2):
        1. The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or
        2. The custodian appointed under the prior decree has placed the child with a de facto custodian.

      After two years, the modification is based on what is found to be in the best interest of the child after the court considers the factors set forth in KRS 403.270.

  • What things will the court consider and not consider when determining physical custody / visitation / timesharing?
    • The Court will consider almost anything that pertains to the child(ren)’s physical, mental, moral, or emotional health when deciding on a reasonable visitation schedule. The relevant law is set forth in KRS 403.320(1), which states: "A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child."

  • What do Courts consider to be reasonable visitation / reasonable timesharing?
    • What constitutes reasonable visitation varies from circumstance to circumstance; however, the general rule of thumb is that if both parents have played a significant role in the children’s lives and the Court is not concerned about the moral, physical, or mental safety of the child(ren) in the physical custody of either parent, then something similar to the timesharing guidelines will apply.

  • How can I modify my current timesharing or visitation schedule?
    • Unlike legal custody battles, pursuant to KRS 403.320(3), parents are permitted to bring a visitation or timesharing modification motion before the court whenever the modification would serve the best interest of the children. The relevant statute states: "The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health."

  • Is it possible to get equal timesharing?
    • Generally speaking, Kentucky’s Courts have only implemented equal timesharing when experts have advised it or parents have agreed on it because it is generally viewed as being too disrupting to the children’s lives when the time is literally split right down the middle.

      One solution that has been offered to minimize the stress the children face in equal timesharing arrangements, as well as the more common unequal arrangements, is the “Birds Nesting” visitation arrangement. Birds Nesting is a visitation arrangement whereby the children stay in the family residence so that instead of the children bouncing back and forth between their parents home, the parents take turns living in the family residence. In other words, the children simply stay at "home" following their parents’ separation or divorce while each parent gets his or her own residence and takes turns living with the children at the home the children were raised in pre-divorce.

      The idea is that like eggs in a “birds nest,” the children remain safely and comfortably at home instead of having to move back and forth between each parent’s house, which is thought to minimize the amount of stress and disruption in the children’s lives. Of course the arrangement can be expensive as it requires three separate residences. Although the concept has its advantages, it is usually only an option if the parents are in agreement to it.

  • Under what circumstances would a parent not get any timesharing at all?
    • It is only in the most extreme circumstances that a parent who actually wants to be a part of the life of the child(ren) is denied that right. Examples of such extreme circumstances include: murderers, child abusers, molesters, sex offenders, extreme drug addicts, etc. However, even people who fall into one of these categories may be granted supervised timesharing.

Legal Services Offered and Cost

Assistance with Child Custody and/or Timesharing Issue

Legal fees: hourly rate

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