The Kentucky Supreme Court, in the recent case of Pennington v. Marcum, clearly defined custody and visitation and reaffirmed the requirements for modifying both custody and visitation, during and after a divorce decree. Custody is traditionally described as the care, control and maintenance of the children. Kentucky only recognizes two categories of custody; joint custody and sole custody.
A sole custodian possesses full control and decision-making responsibility for his or her children. The non-custodial parent usually has visitation, a term which denotes the right to see the children, but not to control them legally. In Joint custody both parents have responsibility for and authority over their children at all times. Joint custody does not require that the children spend an equal amount of time with each parent, but each parent should have the opportunity to spend time with the children. In joint custody both parents possess the rights, privileges, and responsibilities to make decisions for their children and are expected to consult each other and participate equally in the child’s upbringing.
Shared custody is a subset of joint custody that combines the concept of joint custody with some of the patterns of sole custody. In shared custody, both parents have legal custody that is subject to some limitations delineated by agreement or court order. Unlike full joint custody, time sharing is not necessarily flexible and frequently mirrors a typical sole custody pattern where the child may live with one parent during the week and reside with the other on alternate weekends. Split custody is a subset of sole custody whereby each parent has sole custody and decision-making authority while the child is in residence with him or her, and only visitation when the child is in residence with the other parent.
Prior to entry of a final divorce decree, a court may enter temporary custody orders pursuant to KRS 403.280, and may determine time-sharing/visitation pursuant to KRS 403.320. A court may modify these temporary custody and visitation orders whenever it is in the child’s best interests to do so. KRS 403.270 sets forth nine factors to be considered when determining a child’s best interest. However, once a final decree has been entered the standard to modify custody changes. A custody decree cannot be modified within two years of the date of the decree unless it is shown that the child is seriously endangered or has been abandoned. As a result of the heightened standard, modification of custody within two years of the decree is usually very difficult. After two years the standard to modify custody reverts back to the best interest of the child standard.
The Court in Pennington v. Marcum held that KRS 403.320, which applies to visitation, a sole custody term, also applies to time-sharing, the joint custody counterpart. Modification of a child’s primary residence, in a joint custody arrangement, does not change the fact that the parties have joint custody and therefore is not a modification of custody, but rather a modification of time-sharing. Modifications of time-sharing do not have a heightened standard in the two years following a decree and may be brought at any time, whenever modification would serve the best interest of the children.
If you would like a copy of Pennington v. Marcum to review or for questions on the standards to modify custody and visitation/time-sharing, both before and after the issuance of a decree, feel free to contact M. Jason Lawrence.