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Legal Information: Kentucky


July 14, 2020

How will a judge make a decision about 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” that joint custody and equally shared parenting time is in the best interest of the child. This means that the judge will assume this to be true and if you don’t want this type of custody and parenting time arrangement, it is your burden to convince the judge to grant another type of custody/parenting time order (i.e., sole custody or unequal parenting time).1However, 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 or was issued against a party by the other party or on behalf of the child at issue in the custody hearing.2

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 below 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 (i.e., if the parent seeking custody had to leave the child to find work, attend school, etc.);
  • 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

De facto custodian” means a person who has been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six months or more if the child is under three years of age and for a period of one year or more if the child is three years of age or older (or has been placed by the Department for Community Based Services).3

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.4

1 KRS § 403.270(2)
2 KRS § 403.315
3 KRS § 403.270(1)(a)
4 KRS § 403.270(3)