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I want my child to live primarily with me. Currently, the child lives with the other parent. Am I seeking a change in custody?

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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