Kentucky Custody

Custody

General information

Who can file for custody?

Either parent can file for custody or a “de facto custodian” can file. “De facto custodian” means a person who has been the primary caregiver for, and financial supporter of, the child. Also, within the last two years, the child must have lived with this person for the following amount of time altogether:

if the child is under three years old, a total of six months or more;
if the child is three years or older or has been placed by the Department for Community Based Services, a total of one year or more.¹

Once a judge determines that a person meets the definition of de facto custodian, that person has the same right to file for custody that each parent has.²

¹KRS § 403.270(1)(a)
²KRS § 403.270(1)(b)

What factors will a judge look at when deciding custody?

When deciding the child’s best interests, the judge will look at all relevant factors, including:

the wishes of the child’s parents and any de facto custodian as to the child’s custody – see Who can file for custody? for definition of “de facto custodian”;
the child’s preference for who s/he wants to have custody - however, the judge will also consider any influence that a parent or de facto custodian may have over the child’s wishes;
the interaction and relationship the child has with his/her parents, siblings, and any other person that might significantly affect the child’s best interest;
the motivation of the adults participating in the custody proceeding;
the child’s adjustment and continuing closeness (proximity) to his/her home, school and community;
the mental and physical health of all individuals involved;
a determination by the judge that domestic violence and abuse have been committed by one of the parties against the other party or against a child of the parties. The judge would then consider:
- the extent to which the domestic violence and abuse have affected the child;
- the extent to which the domestic violence and abuse have affected the child’s relationship to each party;
- any efforts made towards completing a domestic violence program, treatment, or counseling;
the extent to which the child has been cared for, nurtured, and financially supported by any de facto custodian;
the intent of the parent(s) in placing the child with a de facto custodian;
the reason(s) the child was placed under the care of a de facto custodian;
whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence; and
the likelihood that a party will allow the child to have frequent, meaningful, and continuing contact with the other parent or de facto custodian. However, the judge will not consider this if the judge has determined that:
- the other parent or de facto custodian committed domestic violence and abuse against the party or a child; and
- a continuing relationship with the other parent will endanger the health or safety of either the party or the child.¹

Note: If you leave the family home as a result of physical harm by the other parent or if you were seriously threatened with physical harm by the other parent, this is not supposed to be held against you.²

¹ KRS § 403.270(2)
² KRS § 403.270(3)

Will a judge always grant joint custody?

A judge will make a decision about custody based on what s/he thinks is in your child’s best interest. However, under Kentucky law, there is a “rebuttable presumption” in favor of joint custody. What this means is that the judge will assume that joint custody and equally shared parenting time is in the best interest of the child. If either party does not want joint custody, s/he has to convince the judge to grant another type of custody/parenting time order, such as sole custody or unequal parenting time.¹

The only time when the judge will not assume that custody and equally shared parenting time is in the best interest of the child is if one party has a domestic violence order against the other party for his/her own protection or for the protection of the child who is the subject of the custody case.²

¹ KRS § 403.270(2)
² KRS § 403.315

Should I start a court case to ask for supervised visits?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.

However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to KY Finding a Lawyer to seek out legal advice.

The custody process

Can a parent who committed violence get custody or visitation?

Under Kentucky law, the judge is generally supposed to assume that joint custody and equally shared parenting time is in the best interest of the child unless a party convinces the judge otherwise. However, the judge will not assume that custody and equally shared parenting time is in the best interest of the child if a domestic violence order is being issued or was issued against a party by the other party or on behalf of the child at issue in the custody hearing.

In addition, regardless of whether there is a domestic violence order or not, the judge must consider any finding (determination) by the judge that domestic violence and abuse have been committed by the other parent against you or against a child of the parties. The judge would look at the extent to which the domestic violence and abuse have affected the child and the child’s relationship to each party. However, the judge will also give consideration to efforts made by a party towards the completion of any domestic violence treatment, counseling, or program.¹

The law says that a parent who is not granted custody is entitled to reasonable visitation rights unless the judge finds (after a hearing) that visitation would seriously endanger the child’s physical, mental, moral, or emotional health.² If the judge determines that there was domestic violence but the judge believes there should still be visitation, s/he should make a visitation arrangement which would not seriously endanger the physical, mental, or emotional health of the child or of the abused parent.³

Note: If either you or the other parent requests it, the judge is supposed to issue an order that specifically lays out how often visitation should be, how long the visits are, when it should take place, the conditions for the visits, and a method of scheduling visitation. The order should also reflect the development and age of the child.²

Often it is best to have a lawyer represent you in a custody case, especially one involving domestic violence issues. For legal organizations, see our KY Finding a Lawyer page.

¹ KRS §§ 403.270(3); 403.315
² KRS § 403.320(1)
³ KRS § 403.320(2)

If my child was conceived from sexual assault, can the offender get custody or visitation?

If the offender was convicted of a felony offense related to rape/sexual assault that caused you to conceive your child, the offender cannot get custody or visitation rights unless you specifically ask the judge to order visitation rights. Such a request for visitation rights, however, can only be made by a mother who is age 18 or older. In addition, the offender will be ordered to pay child support unless you do not want it. However, you can only give up (waive) child support if you are age 18 or above. If you are a minor, child support can only be waived by your guardian or a de facto custodian of the child.¹

The offender also loses the right of to inherit any money with respect to the child.²

¹ KY ST §§ 405.028; 403.322
² KY ST § 403.322(2)

If there is a custody order in place, can I relocate?

If there is an order of joint custody and either parent wants to relocate, s/he has to file a written notice of relocation with the court and have it served upon the other parent. If the parents do not agree to the relocation, either parent can file a motion for change of custody or time-sharing within 20 days of when the notice of relocation was served. If both parents agree, they can make a written agreement to modify the time-sharing and file an “agreed order” with the court.¹

If there is an order of sole custody and the sole custodian wants to relocate, s/he has to file a written notice of relocation with the court and have it served upon the other parent. If the court-ordered visitation would be affected by the relocation, the non-custodial parent can file a motion objecting to the change in visitation within 20 days of when s/he was served with the notice.²

¹ Kentucky FCRPP 7(2)(a)
² Kentucky FCRPP 7(2)(b)

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Where can I find more information about custody in Kentucky?

Legal Aid Network of Kentucky provides general information about custody issues in Kentucky, including what happens if both parents agree on parenting time, information on moving with a child, and more.

The Kentucky Bar Foundation has prepared a Pro Se Child Custody/ Parenting Time Instruction Packet and Forms to help parents file for custody on their own and represent themselves in court. It’s important to note that parents who represent themselves in court will be held to the same standards that lawyers are, and will have to follow the same rules. If you have any questions or concerns about representing yourself, please contact a lawyer before filing.

Please note that WomensLaw.org is not affiliated with either of the organizations listed above and cannot vouch for the information contained on their sites.

Military deployment and custody/visitation

What happens if one of the parents is deploying?

The parent who is deploying has seven days from the time s/he finds out about his/her deployment to let the other parent know in writing. If s/he can’t do that because of his/her service, s/he must notify the other parent about it as soon as s/he can.¹Each parent then must give the other parent a written plan explaining how s/he will fulfill his/her share of the custodial responsibility during the deployment.

Note: If there is a court order in effect that keeps one parent’s address or contact information confidential, the other parent must notify the court that issued the order instead of notifying the protected parent directly.²

¹ KRS § 403A.105(1)
² KRS § 403A.105(2), (3)

My child’s other parent is being deployed and we want to make an agreement for temporary custody. What should the agreement include?

If both parents agree on temporary custody, Kentucky law allows them to enter into a temporary custody agreement. It must be written down and signed by both parents and any other person who is going to have responsibility for the child during the deployment, such as a grandparent.¹Think carefully about the details of your agreement, and make sure that everything you want to have happen with your child is included. Should the court ever need to get involved, the judge will likely only consider the written document and not any agreements you and the other parent may have made verbally.

Ideally, your agreement should contain the following information:

If you can, explain where the military parent will be deploying, how long s/he will be gone, and what the conditions of his/her deployment are;
Explain who will be taking care of the child, whether that is the deploying parent, the other parent, or any other person;
Explain who will have the right to make decisions about the child while the agreement is in effect. This could mean the parent remaining at home makes some types of decisions while the military parent must be consulted for other types of decisions. If a nonparent is going to be helping care for the child, such as a grandparent or a trusted friend, state what the limits of his/her authority will be;
If you are agreeing to any kind of limited contact for a nonparent, explain clearly what you are intending to allow;
If the child is going to be living both with a parent and a nonparent, explain how you intend to solve any disagreements that may come up;
Explain the contact the deploying parent will have with the child. You must include how often, how long, and what form the contact will take, for example, Zoom, phone calls, texts, emails, etc. If the parent at home needs to do something to make that contact happen, state exactly what the parent at home needs to do and who will pay for any costs that are associated with the contact;
Explain what contact the deploying parent will have with the child while that parent is on leave or is otherwise available;
State that both parents are aware that this agreement cannot modify any child support payments that have already been ordered, and that if the child support needs to be changed during the deployment, the parties must contact the court that issued the child support order;
State that the temporary agreement will end after the deploying parent returns from the deployment; and
If the agreement must be filed with the court, state which parent will be responsible for filing it.²

It’s important to include as many of these things in your agreement as you can, but your agreement won’t be invalid just because you leave a few things out.³However, you often can avoid a lot of problems down the road if you can make your agreement as complete as possible.

¹ KRS § 403A.201(1), (2)
² KRS § 403A.201(3)
³ KRS § 403A.201(4)

My child’s other parent is back from deployment. What happens to our temporary custody agreement?

If you entered into a temporary custody agreement because of the other parent’s deployment, there are a few things that could happen. If your agreement specified a date that it would end, then it will end on that date. If your agreement didn’t specify a date, then you and the other parent can sign an agreement to end (“terminate”) the temporary arrangement any time after the deploying parent gets back. If you filed your temporary custody agreement with the court, then you need to file your termination agreement in the same court within a reasonable time after it’s signed.

If none of those situations apply to you, by law your agreement will end 60 days after the date the deploying parent let you know that s/he returned from deployment.¹

¹ KRS § 403A.401

Legal Information: Kentucky