Cincinnati Family Law & Divorce Blog: Kentucky—Presumption of Equal Time and Joint Custody

 

On July 14, 2018, Kentucky amended its custody laws enacting a legal presumption that joint custody and equal parenting time is in the best interest of the child under KRS 403.270. While many Kentucky Judges have informally applied such a presumption in divorce and custody matters in the past, this statute now makes it clear that the Courts must start with this presumption in all cases. It is important to note that this presumption is rebuttable by a preponderance of evidence. Therefore, parties still have the opportunity to present evidence to the Court demonstrating that joint custody and equal parenting time are not in the best interest of their child or children.  In making any determination, the Court will consider the best interest factors as identified in KRS 403.270, some of which include the wishes of the parents, the wishes of the child with due consideration given to the influence a parent may have over the child’s wishes, and the motivation of the parents in the proceeding.

 

The statute also specifically provides that a finding of domestic violence must be considered in determining the child’s best interest, instructing the Court to consider “the extent to which the domestic violence and abuse has affected the child and the child’s relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program.”  This factor illustrates that a finding of domestic violence in a case could have a significant impact on the order of parenting time and custody, both on a temporary and permanent basis.

 

In addition to creating this new required presumption, this change in law also differs greatly from the laws in the State of Ohio, where no such presumption for equal time or joint custody exists. Therefore, it is essential for parties to understand the differences between Ohio and Kentucky law if the parents reside on opposite sides of the Ohio River. Reviewing and analyzing one’s case under both state’s laws, may impact important decisions regarding where to file for divorce or where to file for custodial rights of child if the parties are not married.