Child Custody & Visitation
Some of the most difficult emotional and legally complex aspects of family law are
those involving child custody. The decisions made regarding custody effect the child's
living arrangements, education, health and well being for a lifetime. Often, parents,
relatives and the state are at odds as to how to raise a child. Unlike issues that
are strictly monetary in nature, there are very few clear cut judicial decisions
and all orders with regard to custody and visitation, whether agreed to or determined
by a court after litigation, are subject to review and revision until the child
reaches majority.
In Kentucky , contested custody issues are to be given priority by the courts. Unfortunately,
even if expedited, contested cases can take months or years to resolve. The guiding
light in all court decisions involving custody and visitation is "the best interest
of the child." The factors set forth to determine best interest include a) the wishes
of the parents or any de facto custodian, b) the wishes of the child as to his custodian,
c) the child's interactions with the immediate family and significant others who
affect the child's best interest, d) the child's adjustment to his or her school,
home and community, and e) the mental and physical health of all individuals involved
in the child's life. The court may also consider any evidence of domestic violence.
The court is excluded from considering conduct of a proposed custodian that does
not affect his or her relationship to the child.
In divorce actions in which there are minor children who are the issue of the marriage,
no testimony other than on temporary motions shall be taken or heard before sixty
days. The court may impose costs or expenses incurred by any person whose presence
the court deems necessary to determine the best interests of the child. This would
include the cost of any mental health professional appointed by the court and in
some jurisdictions, the cost of a guardian ad litem if appointed by the court.
Joint custody and sole custody are the options available for those seeking custody.
The designation of "primary residential custodian," is often awarded or designated
by agreement.
Modification of custody is a complex area of family law. The clearer cases are those
requesting a change of custody based on abuse or neglect. If a physical danger to
the child can be established, the court will often act without hesitation to protect
the child from the perpetrator. The more difficult scenarios involve modification
cases in which there is no clear and present physical danger, and one of both of
the parties desire to move from joint custody to sole or the parties wish to modify
the current joint custody arrangement.