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By suttondean9025783, Jan 14 2019 09:13PM

Kentucky custody statutes have been modified so that there is now a rebuttable presumption that both parents share joint custody of their child with equal parenting time. The statutes set forth a rebuttable presumption, meaning that if a parent does not want there to be joint custody and equal parenting time that parent must prove to the Court that it is in best interests of the parties’ child that a more traditional arrangement, such as one parent having primary residential custody of the child and the other parent seeing the child every other weekend and perhaps one evening during the week, is in the best interests of the child. If the parent wanting primary residential custody of the child cannot prove that it is in the best interests of the child for him or her to have the child most of the time, the Court is now required by law to set an equal parenting time arrangement. The parent wanting primary residential custody may want to show that the other parent does not have much of an interest in the child, that the child may be unsafe with that parent, or that the other parent’s work schedule makes it impossible for there to be an equal parenting time arrangement. The parent wanting equal time with his or her child just has to show that he or she has the time to devote to the child and that he or she cares enough about the child to keep the child safe.

By suttondean9025783, Dec 3 2018 08:40PM

Whether your child can or should testify in your divorce or child custody case depends on several factors. First, the Judge has to make a determination whether your child can testify. In the Jefferson County, Kentucky area, at least one Judge is very hesitant to allow a child to testify even if the child witnessed domestic violence and wants to testify. That Judge’s reasoning seems to be that the child is better off speaking with Child Protective Services. Most other Judges in the Jefferson County, Kentucky area will either allow a child to testify or will interview the child in the Judge’s chambers. Even then, the Judge will permit a child to testify or interview the child only if the Judge believes that it is absolutely essential to the case to do so. In other words, in most cases, the child must have witnessed something relevant to the case and be the only person, other than the parties to the case, who witnessed a particular event or series of events.

Whether or not your child should testify or be interviewed in a case depends on the child’s age and maturity level and how you feel testifying or being interviewed by the Judge about his parents/custodians will affect your child. Judges are always going to be concerned that allowing the child to testify or be interviewed will be detrimental to the child’s well-being. Attorneys representing one party or the other are not permitted to themselves interview a child but many parents have told me that their children want to testify. My personal belief is that if old enough and mature enough, a child should at least be interviewed by the Judge if it means that the Judge will have additional information that will help the Judge make a better, informed decision.

By suttondean9025783, Jun 27 2015 09:53PM

I can’t give you a definite answer to that question but the fact is if you were able to effectively communicate with your spouse during your married time together, you probably wouldn’t be getting a divorce. If you have children together, under normal circumstances you certainly should be making every effort to continue seeing them or allowing your spouse to see them and that usually necessitates communicating with your spouse to arrange for the visitations. If you are the parent selfishly and without merit putting up roadblocks to allowing your spouse to see the children, you are hurting your children psychologically and you could be hurting your chances of being awarded the children as their primary residential parent because judges certainly believe and know that both parents have equal rights to their children and throwing up roadblocks to allowing your spouse to see his or her children is one factor the judge will take into consideration in determining with whom the children shall primarily live.

Communicating with your soon to be ex-spouse could also save you time and money in legal fees because the more agreements you can reach with your spouse the less time your attorney will have to spend trying to figure out how he or she can get you what you want out of the divorce. Moreover, the more agreements you reach the less the decisions the judge is going to have to make on decisions that could affect you for many years if not for the rest of your life.

You do not want to communicate with your soon to be ex-spouse is if he or she is devious and prone to lying, especially if you have children and he or she wants them. This is because there is a reasonable likelihood that your spouse will file a false Emergency Protective Order against you saying that you injured or threatened to injure him or her and/or your kids. With an EPO, even one based on false allegations and with absolutely no evidence to support it, you can lose the battle for your house and/or kids before your divorce even begins.

Here’s how. Your spouse files a false allegation against you saying that you threatened him/her and your kids. An EPO is then entered without you having a chance to defend yourself, and in many cases, without even your knowledge that one is being sought. You are ordered to immediately vacate your house and to have no contact with your spouse or kids. You basically are put out on the streets with nothing more than the clothes on your back. In 14 days, you and your spouse must appear in court in which case your spouse reiterates his/her statements and then you must prove that the event or threat did not happen or did not happen the way your spouse says it did. You have no witnesses to defend yourself and while your kids may know that your spouse’s allegations are untrue, your kids are with your spouse, not you, so you have no access to them and cannot bring them to court to tell the judge that your spouse is lying. Moreover, if your spouse is devious and prone to lying, chances are so are his/her friends or parents who will also swear that you did the things you are being accused of.

The judge has to make a decision whether the alleged act occurred without any real evidence and the judge will determine that you committed the injurious act and issue a domestic violence order if the judge is as little as 51% sure that you did. And since judges in Kentucky are elected, no judge wants his or her face plastered over the evening news that a DVO was not issued when the alleged perpetrator commits an even more heinous act of domestic violence. Thus, the deck is decidedly stacked against you in trying to defend yourself against the imposition of a DVO. DVOs can be good for up to three years and can be renewed with little more than your spouse/ex-spouse saying that he/she is still afraid of you. You will remain kicked out of your house and your contact with your children will be severely hampered. And when it comes time for deciding in your divorce who is going to get the house and who the children are going to primarily live with, who do you think the very same judge will decide should be awarded the kids and the house?

The moral of the story is if you can even imagine in your wildest dreams that your spouse will file an EPO against you, stay away from him/her. Have as little contact with him/her as possible. Have another credible adult witness at every single contact/conversation you have with your spouse and seriously consider secretly recording each and every conversation you have with your spouse. In Kentucky, secretly recording a conversation with another person is perfectly legal so long as you are part of the conversation. In other words, you cannot surreptitiously put a tape recorder underneath someone’s couch and leave the room; however, you can tape a phone conversation you are a part of or you can use a tape recorder hidden in your pocket.

By suttondean9025783, Jun 25 2015 12:33AM


There are six new Jefferson County Family Court Judges and a new Family Court Judge for the Family Court of Shelby, Spencer and Anderson Counties. Unlike the four more seasoned Family Court Judges in Jefferson County, the Family Court Judge in Bullitt County, and the Family Court Judge for Oldham, Trimble and Henry Counties, the new Family Court Judges have yet to establish much of a discernible track record from which someone can pick up on their core beliefs and judicial tendencies. Moreover, while all of the Family Court Judges are bound by statutory law and applicable case law, Family Court Judges have much judicial discretion and an appeals court (i.e., the Kentucky Court of Appeals and the Kentucky Supreme Court), is not going to overturn rulings of a Family Court so long as there is some rationale basis and support for how a Family Court Judge ruled. So, for instance, Family Court Judges, by law, are supposed to make decisions that are “in the best interests of the child.” If a particular Family Court Judge decides that it is in the best interests of the child to live primarily with the child’s mom, the Kentucky Court of Appeals and the Kentucky Supreme Court are not likely going to second guess the Family Court Judge and decide that it is in the child’s best interest that the child lives with the dad. However, an experienced family law attorney will generally know what a Family Court Judge is looking for in making his or her decisions, and while it is a little bit harder to anticipate what may or may not be important to any one of the new Family Court Judges, an experienced family court attorney will know what the applicable statutes and case law say and the attorney may have even practiced cases with or against some or all of the new Family Court Judges, so may very well know what is important to any particular Judge and how the Judge thinks and normally rules. And having practiced cases before all of the new Family Court Judges (as well as the more seasoned Family Court Judges), I can honestly say that for the most part, most all of them have exercised considerable judicial restraint, have been fair, and have not made hasty or unwise decisions.

Now, all of the new Family Court Judges are female, and while conventional wisdom may lead some to believe that this is bad news for fathers/husbands, conventional wisdom is not always right. The truth is only time will tell, but, for instance, the Bullitt Family Court Judge, the Honorable Elise Givhan Spainhour, is female, but both by her reputation and in my personal experience, she treats men with absolute fairness and has little tolerance for a woman who, for no justifiable reason, tries to keep a dad away from his child or tries to make all of the major decisions for the child without any consideration as to how the child’s father feels about the situation. In contrast, at least one male Family Court Judge is thought to be very liberal in awarding maintenance (formerly known as alimony) to women.

Knowing all of this, an experienced family law attorney should be able to help you achieve the best possible results given your unique set of facts and circumstances.

By suttondean9025783, Dec 19 2014 02:22AM

Most likely not. Under still evolving Kentucky law, what you are probably seeking is a change in “parenting time” with your child. Under current Kentucky law, if the parent who may see his or her child every other weekend (called the “noncustodial parent”), wants to change the arrangement wherein the child lives in his or her household during the week (called the “custodial parent”), that parent is not necessarily seeking a change of custody. If the parent is not seeking to take away decision making authority from the other parent, then the parent seeking the change is not seeking a change of custody but a change in parenting time. The parent is seeking to replace the current parent as the “primary residential parent.”

While Kentucky law is still evolving in this area, Kentucky appellate courts have spent a considerable amount of time over the last few years opining as to the correct legal standard to be applied when the noncustodial parent seeks to become the primary residential parent. Prior to 2008, it used to be that if the noncustodial parent sought to become the custodial parent within two years of a custody order denoting him or her as the noncustodial parent, that noncustodial parent had to show a change in circumstances that created a serious endangerment to the physical, mental, moral or emotional health of the child under the current custodial arrangement or that the custodial parent placed the child with a de facto custodian (such as an aunt or grandparent). However, in 2008, all of that changed with the landmark Kentucky Supreme Court case of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). In Pennington, the Kentucky Supreme Court held that when parents have “joint custody” of a child with one parent being designated the custodial parent – who typically has the child during the week – and the other parent being designated the noncustodial parent – who typically has the child on alternate weekends and perhaps, one day during the week every other week – they both have decision making authority for their child. When the noncustodial parent seeks to become the custodial parent, that parent seeking the change is not trying to take decision making authority away from the current custodial parent. The noncustodial parent simply seeks a role reversal wherein he or she becomes the custodial parent.

The Pennington Court ruled that all the noncustodial parent has to prove in order to become the custodial parent is that it is in the “best interests of the child” of the child that the change be made. However, while this new standard is certainly true for changes sought to be made more than two years after a “permanent” custody order was entered by a court, the Pennington Court, did not, with 100% degree of certainty, resolve the issue of whether the lesser “best interests of the child” standard would apply when a change in the primary residential parent is sought within two years of a permanent custody order. Moreover, the Pennington Court did not address the real possibility that parents, now that the two year rule is all but abolished, would constantly seek a change in the primary residential parent citing that it is in the best interests of the child to make the change. The lower trial courts in Kentucky appear to have recognized this most assuredly unintended consequence of the Pennington decision by impliedly or sometimes explicitly requiring the noncustodial parent seeking a change in his or her status to show what circumstances have changed to warrant him or her becoming the primary residential parent. While this is certainly understandable for the trial courts to do as they are on the front lines of overcrowded court dockets, the requirement is not consistent with the Pennington decision. Pennington does not require changed circumstances, all it requires is that the change in the primary residential parent be in the child’s best interests. While this disconnect between what Pennington says and what trial courts require is real, it may have no practical significance. This is because the reality is that a court, in naming a primary residential parent in an initial permanent custody order would have done so because it felt that it was in the child’s best interests to do so. To then later, in effect, reverse what the court determined was in the child’s best interests, something will have had to have changed unless the noncustodial parent could show the Court that it got it wrong in the first place and given the same facts, the court should change the primary residential parent. While Pennington, intentionally or unintentionally, leaves open the possibility that a court could change the primary residential parent based on unchanged facts from an earlier permanent custody hearing, in practice it is most likely going to be rare that the noncustodial parent argues that nothing has changed but that a change in the primary residential parent is warranted.

Thus, the bottom line is a “permanent” custody ruling is not necessarily permanent at all. Whereas, in the past a noncustodial parent realistically had to wait at least two years to seek a change in the “permanent” custody award, now the noncustodial can at any have a legitimate chance of becoming the primary residential parent if some significant change has occurred wherein it would be in the best interests of the child if a change in the primary residential parent were to occur.

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