Can Children Express Preference in Kentucky Custody Proceedings?

In the United States, over a third of children have parents who are separated. Each year, more families have to figure out a custody arrangement for their children.

Custody determinations can be complicated, and not only because both parents often want custody; many children have their own custodial preferences as well. Many states require judges to consider the child's opinion when deciding custody.

This article will explain how a child's preference affects custody in Kentucky. If you have additional questions about the effect of a child's custodial preference in Kentucky after reading this article, you should contact a local family law attorney.

Kentucky Custody Basics

In a Kentucky child custody proceeding, the courts will determine two types of custody: legal custody and residential (physical) custody. Parents with legal custody can make decisions regarding the child's overall well-being. For example, if a child needs a major medical procedure, parents with legal custody can decide whether to sign the consent forms. Residential custody—also called physical custody—refers to where the child will live during the year. (Ky. Rev. Stat. Ann. § 403.800.)

Judges can award custody to one parent or both parents together, depending on the circumstances. Joint custody means that the parents will share legal decision-making responsibility and equal parenting time with the child.

Kentucky law requires judges to begin custody evaluations with the presumption that it's in children's best interests for their parents to share custody. The presumption is rebuttable—meaning that if one parent demonstrates to the court that joint custody isn't best for the child, the court can award one parent custody instead of both. (Ky. Rev. Stat. Ann. § 403.270 (2).) The joint custody presumption does not apply in cases where the court issued a domestic violence order against one of the parents. (Ky. Rev. Stat. Ann. § 403.315.)

Visitation

If the court awards one parent sole custody, the judge must provide a visitation schedule to maximize the time each parent shares with the child. (Ky. Rev. Stat. Ann. § 403. 270.) A typical schedule may include alternating weekends and holidays, as well as extended periods of visitation during school breaks and summer vacation.

Overview of Custody Decisions in Kentucky

In Kentucky, the court encourages parents to work together to create a custody plan. If you agree, you can present your parenting plan to the court, and the judge will approve it, as long as it serves the child's best interest. (Ky. Rev. Stat. Ann. § 403.330.)

If parents can't agree, the judge must evaluate the circumstances and allocate custody and parenting responsibilities, focusing primarily on how to protect the child's mental, physical, and emotional well-being.

Judges must consider a variety of factors, including each of the following:

• each parent's wishes as to custody
• the child's relationship with parents, siblings, and any other person who significantly affects the child's best interests
• each parent's motivation for seeking custody
• the child's adjustment to school, home, and community
• the child and parents' physical and mental health
• any history of domestic violence in the child's home
• who has historically been the primary caretaker for the child
• whether the parents intend to place the child with a custodian
• the child's wishes for custody, and
• any other factor the court deems relevant. (Ky. Rev. Stat. Ann. § 403.270 (2).)

To read more information about custody decisions in Kentucky, see Child Custody and Visitation Laws in Kentucky.

Changing a Custody Order

The court can change or review a custody or visitation order in some circumstances. However, the law favors stability for children, so judges take the request for a modification very seriously. Kentucky law requires at least two years to pass between the original order and a modification review, unless:

• the child's current environment presents a threat of danger to the child's physical, mental, moral, or emotional health, or
• the custodial parent placed the child with a third-party "de facto" custodian. (Ky. Rev. Stat. Ann. § 403.340.)

If it's been at least two years (or if you meet the above requirements), the next step is for the requesting parent to demonstrate to the court that there has been a material change of circumstances that make the current order ineffective or inappropriate. Once the court is satisfied that you meet the requirements, the judge will create a new custody order using the process described above.

When Will the Court Consider a Child's Preference?

In Kentucky, judges will consider a child's preference only if the child is mature enough to participate in the litigation without harming the child. There are two reasons that courts don't question younger children about their custodial preference. First, asking young children about custodial preferences can reinforce the children's belief that the parents' separation is their fault.

Also, there's a greater chance a young child based the opinion on superficial desires, rather than what's "best." For example, if a teenage son would prefer to live with his father because he has the newest gaming system, the court won't give that preference any weight. On the other hand, if a son prefers to live with his father because they regularly spend time together and his dad is involved in schooling and sports, the court may factor the preference into the custody decision.

If a child simply refuses to live with one parent, courts may award custody to the other parent. In one case, two girls, aged 12 and 16, refused to live with their mother, who had mental health problems; the court honored their request to live with their father. Kentucky judges are more likely to follow a child's preference if the reasons behind the opinion show a parent's inability to control or supervise the child. For example, courts have granted children's custody requests in situations where a parent has improper sexual relationships instead of supervising the child.

There is no specific age when the court will listen to a child's opinion. Instead, the court will evaluate the child's maturity, reasoning, and relationship with both parents. Additionally, a child's preference usually won't be the deciding factor in custody. Courts weigh the child's desires, along with all the other custodial factors. The weight a child's preference receives depends on the child's age, the reasons behind the preference, and whether the child's opinion coincides with other evidence about what's in the child's best interest.

Do Children Have to Testify About Their Custodial Preferences in Court?

Kentucky courts typically won't require children to testify about their custodial preferences in court. It's already hard enough for a child to watch parents separate, and most judges don't want to make it more difficult by forcing a child to choose between parents in front of them.

Instead, the court may interview the child in the judge's chambers, outside of the parents' presence. The judge will usually allow the attorneys to be present for the interview and will also require a court reporter to record the conversation.

The court can also seek the help of professionals like custody evaluators, psychologists, or psychiatrists to ascertain the child's desires as to custody. (Ky. Rev. Stat. Ann. § 403.290.)

A custody evaluator or other mental health professional speaks with the child directly and submits a report to the court. The report includes a finding of what is in the child's best interests and the child's custodial preference. The parents' attorneys can call the professional as a witness in court to testify about what the child said. (Ky. Rev. Stat. Ann. § 403.300.)

Resources

The Legal Aid Network of Kentucky website contains helpful links, forms, and information for parents going through a custody battle.

For more information on the laws for child custody, review the Kentucky Revised Statutes, Chapter 403.

If you have additional questions about the effect of children's custodial preferences, contact a Kentucky family law attorney for help.