There are several types of custody that are commonly decided in Kentucky's courts.
First, custody can be "physical" or "legal." Physical custody simply refers to the parent who has physical care and control of the child on a day-to-day basis, which includes daily, hands-on care, such as bathing or feeding a child. Legal custody, on the other hand, is the right to make important decisions on behalf of a child regarding matters like education, culture, religion and health.
Second, custody can be temporary or permanent. As a preliminary matter, temporary custody is usually awarded to one parent during paternity or divorce proceedings, with the understanding that eventually there will be a contested hearing (similar to a trial) in front of a judge, with witness testimony and other evidence, after which the judge may decide to give permanent custody to one or both parties.
Finally, custody in Kentucky can be sole or joint. This distinction most affects legal custody. In a joint legal custodial situation, both parents make decisions together on behalf of their child. When a child's parents have joint legal custody, they often agree to designate the parent with whom the child spends more time as the "primary residential parent" or "primary residential custodian." This is just a way of saying that the parents have equal decision-making rights, but the child spends more time at one residence than the other. This designation is not required by Kentucky law.
By contrast, in a sole legal custodial situation, only one parent has the right to make medical, educational, religious, cultural, and other important decisions for the child without having to consult the other parent.
In a joint physical custodial situation, the child lives with both parents, but may spend a little more time with one than the other.
The Kentucky appellate courts have established a "best interests" standard to decide what the custodial arrangement should be.
If the matter goes to a contested hearing, both parents will have the opportunity to call witnesses, present other evidence and testify. But the court also has some autonomy to gather its own evidence. The court may decide to call the child as a witness, and may ask the child where he or she would prefer to live. Depending on the child's age or emotional state, this conversation may occur in open court or privately, in the judge's chambers. The court may or may not elect to appoint a person or agency of its own choosing as a "friend of the court" to investigate the child's situation and make recommendations to the judge.
After the hearing, the judge must issue a written order for permanent custody that takes into account all of the following factors:
The judge is also required to consider any other relevant factors. Therefore, if the judge is presented with evidence that a child is being subjected to abuse or neglect, say, by a parent who abuses drugs, then the judge is able to take that into consideration as a factor in making a ruling.
But in the end, the judge's decision must be based on all of the factors, not just one or two of them. The key question is, what custodial arrangement best serves the child?
Generally speaking, parents who are not awarded custody of a child are entitled to reasonable visitation. This is because all parents have a constitutional right to care for and control their children. The judge usually defines what amount of visitation is reasonable by setting out a schedule in the final order. Some parties decide to come up with their own arrangements, which they present to the court as a "parenting plan."
Visitation can't be taken away from a parent except by a court after a hearing. Typically visitation is only suspended if the court finds, based on testimony and evidence, that visitation would seriously endanger the child's physical, mental, moral or emotional health. Visitation can be modified or denied if it serves the best interests of a child, but it can't be totally restricted unless the judge finds that it would seriously hurt the child to spend time with the parent.
However, there are some cases where a parent has proven unfit to care for a child, and a non-parent must step in to provide care and love. To gain legal rights, a non-parent must show that the parent is unfit, which can be difficult to do. The nonparent must prove that the parent is unsuitable and harmful; has signed an agreement to surrender custody; or that the parent is otherwise unqualified to claim custody.
Alternatively, nonparents may become the de facto custodians of a child if the child is under the age of three and has lived with them for six months, or lived with them for a year if the child is over the age of three. They must have actual possession of the child and must stand in the place of a parent. If they can establish this, de factocustodians enjoy the same standing in custody matters as a biological parent.
If you have questions about child custody or visitation in Kentucky, you should contact an experienced family law attorney in your area for advice.