Custody and Parenting Time

Episode 4:  In today’s episode, attorney George S. Lamb discusses the topics of custody and parenting time as it relates to family law in Kentucky.  He begins by correcting a common misconception related to child custody.  Let’s dive in to learn more.

The Common Misconception

Many people tend to think child custody refers to where the child lives.  However, the law is focused on decision-making, when it addresses custody.  It’s not about the number of overnights or physical custody of the child. 

The decision-making, according to the law, is focused on major issues rather than minor day-today issues.  It’s referring to decisions involving medical issues, educational issues and issues related to the religious upbringing of the child or children.

What Are the Two Types of Custody in Family Law?

In Kentucky, there are two types of child custody.  The first is joint custody, which is the default arrangement.  The second is sole custody.  The latter is actually an exception to the rule.

Interestingly, the same rules apply regardless of whether the parents were married or not married.  When it comes to child custody matters, the presumption is that parents will share joint custody of the child or children.

What Would Prevent a Judge from Granting Joint Custody?

George explains that a judge could decide that one of the parents is unfit.  This could be related to a mental health issue, an addiction problem, or even a situation in which the parents absolutely can’t agree on anything related to the upbringing of the child. 

At some point, important decisions related to the three main issues will need to be made, on behalf of the child.  If the parents aren’t able to work through the issues, a judge may need to rule on a petition designating a sole custodial parent.  This is actually fairly rare.

George explains that the default positions under Kentucky law include joint custody, equal decision-making and equal, shared parenting time (i.e. visitation).  This is a relatively recent evolution in family law. 

In the past, the children usually lived with one parent and the other parent was awarded a night or two, during the week and may every other weekend.  That was a typical arrangement.  Now, however, the law strives to settle on equal parenting time. 

There are other factors beyond behavior that might prevent a judge from granting joint custody.  They could include practical realities that exist in that particular family dynamic.  For instance, what if the parents live too far away to make an exact division of parenting time workable?  If the parents don’t live within a reasonable proximity, simply getting the child to school might not be feasible under a 50/50 parenting time arrangement.

There are ways to resolve the parenting time issue, but the best interest of the child is a primary factor in the judge’s decision regarding parenting time issues. 

Is Custody Based on Financial Factors?

Actually, the answer is no.  George comments that family law is not a “pay to play” system.  The law applies equally, regardless of financial status.  Parents generally have a right to see their children and to be involved in their lives, unless the court deems that would not be in the best interest of the children.  This is handle in a case by case basis.  Parenting time is unrelated to a parent’s ability to pay child support.

The court looks at all relevant factors.  George mentions that there are a handful of factors to determine what is in the best interest of the child, as it relates to determining parenting time.  For example, the court will consider the wishes of the parent.  At the same time, if appropriate, the court can also take the wishes of the child into consideration.  This refers to an age-appropriate and/or capacity-related ability of the child to voice an opinion on the matter.

For instance, how has the child adjusted to where he/she lives?  Where do they go to school?  How are they rooted in their community?  The mental and physical health of the child and/or come into play. 

Relationships Can Factor into the Decision

What is the relationship between the child and each parent?  What is the relationship between the child and his/her siblings? 

Is there a history of domestic violence?  Is there a history of substance abuse?  Which environment is the most stable for the child?  What environment is the most safe? 

Educational Factors

Jefferson County is a relatively large area.  Once the child begins grade school, he/she can only attend one school.  If the parents to not live near each other, how would the child get to school?  The answer to this question could affect parenting time and child custody.  Remember, education is a custodial decision.

Creative Solutions Can Work

The court will consider allowing the parents to work out a creative solution regarding parenting time.  For instance, they might agree to have the child stay one week with one parent and the next week with the other parent.  Maybe the week is broken into groups of days and alternating weekends. 

The court is not locked into cookie-cutter decisions regarding parenting time and child custody.  If the parents can agree to a workable arrangement, the court will generally go along with it.  The parents know their child or children much better than the judge ever would.

George explains there are tools the court can use.  For instance, the judge may appoint a Guardian ad Litem (“GAL”) who functions as a friend for the court.  This individual would advocate for decisions that are in the best interest of the child/children. 

Defacto Parents Are Often Involved

From time to time the court recognizes that others may be involved in raising the child.  The individual may not be the child’s biological parent, but maybe they are the caregiver, the person who financially supports the child, etc.  This defacto parent can be granted custodial rights.  Often this is a grandparent, an aunt/uncle, an adult sibling, etc.

Modifying Child Custody and Parenting Time over Time

Family law allows for a party to petition for a modification of the original arrangement.  This is referred to as a post-decree modification.  This petition would typically be filed, based on a change in circumstances.

George notes that the court doesn’t want to immediately change the divorce degree a few days or months after it’s been established.  There is generally an expectation that the original agreement needs to be in place for a period of time.  Nonetheless, if there is a substantial and continual change in circumstances, modification dependent upon the best interest of the child can be pursued.  George clarifies that there are some time-based requirements that need to be met, but it is possible to eventually change the original agreement.

Children are minors until they reach the age of 18.  Many factors can change during those 18 years and beyond.  What may have been in the best interest of the child early on, may not be as applicable (or beneficial) today. 

Is It Time to Contact George?

If you answered yes, the best way is to reach out to him on his cell phone at [phone].  You can call and/or text him.  He’ll be happy to speak with you. 

In the next issue, George will explore the issue of child support, so be sure to follow this podcast for new episodes.

We hope you enjoyed today’s episode.  The information provided is not meant to be legal advice.  Listening to this podcast does not establish an attorney-client relationship.  However, if it is time for a lawyer, George is ready to listen.  He’d appreciated it of you’d consider sharing this episode on your social media. 

Going forward, we’ll launch a new episode every other week.  You can connect with George on the firm’s Facebook page, on the website, as well as on Spotify, iHeartRadio, Apple Podcasts and other platforms. 

Lamb & Lamb, PSC is located at 4310 Robards Lane, in Louisville.  The office phone number is [phone].