AN ACT relating to domestic violence.

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AN ACT relating to domestic violence. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 403 IS CREATED TO 3
READ AS FOLLOWS: 4
In any proceeding for child custody under this chapter where the court has made a 5
finding that a party has committed domestic violence and abuse as defined in KRS 6
403.720 against another party to the proceeding or a child of the parties: 7
(1) The court shall not remove custody from or reduce the parenting time of the 8
nonoffending party to whom the child is bonded or attached if the court finds that 9
the: 10
(a) Nonoffending party is competent and not abusive; and 11
(b) Removal would be solely for purposes of improving the relationship between 12
the child and the offending party; and 13
(2) Any order to remediate resistance of a child to contact with a violent or abusive 14
parent shall primarily address the behavior of that parent. 15
Section 2. KRS 403.270 is amended to read as follows: 16
(1) (a) As used in this chapter and KRS 405.020, unless the context requires 17
otherwise, "de facto custodian" means a person who has been shown by clear 18
and convincing evidence to have been the primary caregiver for, and financial 19
supporter of, a child who within the last two (2) years has resided with the 20
person for an aggregate period of six (6) months or more if the child is under 21
three (3) years of age and for a n aggregate period of one (1) year or more if 22
the child is three (3) years of age or older or has been placed by the 23
Department for Community Based Services. Any period of time after a legal 24
proceeding has been commenced by a parent seeking to regain custo dy of the 25
child shall not be included in determining whether the child has resided with 26
the person for the required minimum period. 27
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(b) A person shall not be a de facto custodian until a court determines by clear 1
and convincing evidence that the person mee ts the definition of de facto 2
custodian established in paragraph (a) of this subsection. Once a court 3
determines that a person meets the definition of de facto custodian, the court 4
shall give the person the same standing in custody matters that is given to 5
each parent under this section and KRS 403.280, 403.340, 403.350, 403.822, 6
and 405.020. 7
(2) The court shall determine custody in accordance with the best interests of the child 8
and equal consideration shall be given to each parent and to any de facto cust odian. 9
Subject to KRS 403.315, there shall be a presumption, rebuttable by a 10
preponderance of evidence, that joint custody and equally shared parenting time is 11
in the best interests[interest] of the child. If a deviation from equal parenting time is 12
warranted, the court shall construct a parenting time schedule which maximizes the 13
time each parent or de facto custodian has with the child and is consistent with 14
ensuring the child's welfare. [The court shall consider all relevant factors 15
including:] 16
(3) In making a determination of custody, the court shall, prior to consideration of 17
any other factors enumerated in subsection (4) of this section: 18
(a) Consider any allegations of: 19
1. Domestic violence and abuse as defined in KRS 403.720; or 20
2. An abused or neglected child as defined in KRS 600.020; 21
committed by one (1) party against another party or a child of the parties; 22
and 23
(b) Make written findings on the record as to the impact, if any, of the 24
allegations described in subparagraph 1. of this paragraph on the child. 25
(4) The court shall then consider all other factors relevant to the determination of 26
custody including: 27
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(a) The wishes of the child's parent or parents, and any de facto custodian, as to 1
his or her custody; 2
(b) The wishes of the child as to his or her custodian, with due consideration 3
given to the influence a parent or de facto custodian may have over the child's 4
wishes; 5
(c) The interaction and interrelationship of the child with his or her parent or 6
parents, his or her siblings, and any other pers on who may significantly affect 7
the child's best interests; 8
(d) The motivation of the adults participating in the custody proceeding; 9
(e) The child's adjustment and continuing proximity to his or her home, school, 10
and community; 11
(f) The mental and physical health of all individuals involved; 12
(g) A finding by the court that domestic violence and abuse, as defined in KRS 13
403.720, has been committed by one (1) of the parties against a child of the 14
parties or against another party. The court shall determine the extent to which 15
the domestic violence and abuse has affected the child and the child's 16
relationship to each party, with due consideration given to efforts made by a 17
party toward the completion of any domestic violence treatment, counseling, 18
or program; 19
(h) A finding by the court that a party has maliciously made an intentionally 20
false allegation of child abuse which has no basis in fact and which the 21
party knew had no basis in fact against another party; 22
(i)[(h)] The extent to which the child has been care d for, nurtured, and 23
supported by any de facto custodian; 24
(j)[(i)] The intent of the parent or parents in placing the child with a de facto 25
custodian; 26
(k)[(j)] The circumstances under which the child was placed or allowed to 27
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remain in the custody of a de f acto custodian, including whether the parent 1
now seeking custody was previously prevented from doing so as a result of 2
domestic violence as defined in KRS 403.720 and whether the child was 3
placed with a de facto custodian to allow the parent now seeking cu stody to 4
seek employment, work, or attend school; and 5
(l)[(k)] The likelihood a party will allow the child frequent, meaningful, and 6
continuing contact with the other parent or de facto custodian, except that the 7
court shall not consider this likelihood if there is a finding that the other 8
parent or de facto custodian engaged in domestic violence and abuse, as 9
defined in KRS 403.720, against the party or a child and that a continuing 10
relationship with the other parent will endanger the health or safety of e ither 11
that party or the child. 12
(5)[(3)] The abandonment of the family residence by a custodial party shall not be 13
considered where that[said] party was physically harmed or was seriously 14
threatened with physical harm by his or her spouse, when the[such] harm or threat 15
of harm was causally related to the abandonment. 16
(6)[(4)] If the court grants custody to a de facto custodian, the de facto cust odian shall 17
have legal custody under the laws of the Commonwealth. 18
Section 3. KRS 403.290 is amended to read as follows: 19
(1) The court may interview the child in chambers to ascertain the child's wishes as to 20
his or her custodian and as to visitation. The court may permit counsel to be present 21
at the interview. The court shall cause a record of the interview to be made and to 22
be part of the record in the case. 23
(2) The court may seek the advice of professional personnel, whether or not employed 24
by the court on a regular basis. The advice given shall be in writing and made 25
available by the court to counsel upon request. Counsel may examine as a witness 26
any professional personnel consulted by the court. 27
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(3) (a) Paid visitat ion supervisors and parenting coordinators in a custody 1
proceeding under this chapter, whether appointed by the court or engaged 2
by one (1) or more parties, shall document participation training focused on 3
the following: 4
1. Early childhood, child, and adolescent development; 5
2. Dynamics of domestic violence; 6
3. Effects of domestic violence on adult and child victims; 7
4. Lethality and risk issues; 8
5. Model protocols for addressing domestic violence; 9
6. Available community resources and victim services; and 10
7. For paid visitation supervisors, the role of the paid supervisor and 11
ethical principles of supervising visitation. 12
(b) The training described in paragraph (a) of this subsection shall consist of: 13
1. Sixteen (16) hours of initial training before the paid visitation 14
supervisor or parenting coordinator is eligible to provide services to a 15
party to a custody proceeding; and 16
2. Eight (8) hours annually thereafter. 17
Section 4. KRS 403.315 is amended to read as follows: 18
(1) When determining or modifying a custody order pursuant to KRS 403.270, 19
403.280, 403.340, or 403.740, the court shall consider the safety and well -being of 20
the parties and of the children. If a domestic violence order is being or has been 21
entered against a party by another party or on behalf of a child at issue in the 22
custody hearing, the presumption that joint custody and equally shared parenting 23
time is in the best interests[interest] of the child shall not apply as to the party 24
against whom the domestic v iolence order is being or has been entered. The court 25
shall weigh all factors set out in Section 2 of this Act [ KRS 403.270(2)] in 26
determining the best interests[interest] of the child. 27
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(2) There shall be a presumption, rebuttable by a preponderance of the evidence, that 1
joint custody and equally shared parenting time is not in the best interests of the 2
child if the court finds that a party has committed two (2) or more acts of 3
domestic violence and abuse as defined in KRS 403.720 against another party. 4
(3) (a) The court shall not make an award of custody or grant unsupervised 5
visitation with the child to a party who is found to have committed two (2) or 6
more acts of domestic violence or abuse as defined in KRS 403.720 against 7
another party unless that party has: 8
1. Completed: 9
a. A batterer's intervention program provided by a certified 10
provider pursuant to 920 KAR 5:020; 11
b. Parenting classes; and 12
c. Substance use and mental health assessments and any 13
recommended corresponding treatments; and 14
2. Participated in supervised visitation. 15
(b) Following a party's completion of the requirements in paragraph (a) of this 16
subsection, the court shall conduct an evidentiary hearing before ordering 17
unsupervised visitation to that party and a second or subsequent hearing 18
before awarding custodial rights to that party. 19
Section 5. KRS 403.727 is amended to read as follows: 20
(1) Any petition filed under KRS 403.725 on behalf of a minor who is alleged to be a 21
victim of domestic violence and abuse, or in which a minor is nam ed as a 22
respondent or petitioner, shall comply with the requirements in that section and 23
shall: 24
(a) Proceed in accordance with the procedural safeguards under KRS 610.070; 25
and 26
(b) Conform to the confidentiality provisions under KRS 610.340. 27
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(2) (a) If the court orders an evidentiary hearing under KRS 403.730(1)(a), a 1
guardian ad litem shall be appointed for any unrepresented minor who is a 2
respondent to the action or a petitioner who is an alleged victim of domestic 3
violence and abuse. 4
(b) The guardian ad litem shall be paid a fee fixed by the court not to exceed five 5
hundred dollars ($500), which shall be paid by the Finance and 6
Administration Cabinet. 7
(3) A victim advocate as defined in KRS 421.570: 8
(a) Shall be permitted to attend the evidentiary hearing to offer advocacy 9
services pursuant to KRS 421.575 to the minor petitioner or the adult who 10
has filed the petition on behalf of the minor; and 11
(b) Shall not be excluded from the evidentiary hearing unless the: 12
1. Minor petitioner or adult who has filed th e petition on behalf of the 13
minor declines the services offered; or 14
2. Court, upon motion and for good cause shown, determines that the 15
exclusion is in the best interests of the minor petitioner. 16
(4)[(3)] Violation of the terms or conditions of an order of protection issued under 17
KRS 403.740 after the person has been served or given notice of the order shall 18
constitute contempt of court and may constitute a criminal offense pursuant to KRS 19
403.763 if the offender is an adult or a public offense under KRS 60 0.020(51) if the 20
offender is a juvenile. Once a juvenile action or contempt proceeding has been 21
initiated, the other shall not be undertaken regardless of the outcome of the original 22
proceeding. 23
(5)[(4)] Nothing in subsection (4)[(3)] of this section shall preclude the 24
Commonwealth from proceeding, or the petitioner from pursuing charges, against 25
the minor respondent for offenses other than a violation of an order of protection. 26
Proceedings against a minor respondent for offenses other than a violation of a n 27
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order of protection shall proceed: 1
(a) In the juvenile session of District Court; and 2
(b) In accordance with the procedural and statutory provisions established for the 3
juvenile session of District Court. 4
Section 6. KRS 456.035 is amended to read as follows: 5
(1) Any petition filed under KRS 456.030 on behalf of a minor who is an alleged 6
victim of dating violence and abuse, sexual assault, or stalking, or in which a minor 7
is named as a respondent or petitioner, shall com ply with the requirements in that 8
section and shall: 9
(a) Proceed in accordance with the procedural safeguards under KRS 610.070; 10
and 11
(b) Conform to the confidentiality provisions under KRS 610.340. 12
(2) (a) If the court orders an evidentiary hearing under K RS 456.040(1)(a), a 13
guardian ad litem shall be appointed for any unrepresented minor who is a 14
respondent to the action or a petitioner who is an alleged victim of dating 15
violence and abuse, sexual assault, or stalking. 16
(b) The guardian ad litem shall be p aid a fee fixed by the court not to exceed five 17
hundred dollars ($500), which shall be paid by the Finance and 18
Administration Cabinet. 19
(3) A victim advocate as defined in KRS 421.570: 20
(a) Shall be permitted to attend the evidentiary hearing to offer advoca cy 21
services pursuant to KRS 421.575 to the minor petitioner or the adult who 22
has filed the petition on behalf of the minor; and 23
(b) Shall not be excluded from the evidentiary hearing unless the: 24
1. Minor petitioner or adult who has filed the petition on behalf of the 25
minor declines the services offered; or 26
2. Court, upon motion and for good cause shown, determines that the 27
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exclusion is in the best interests of the minor petitioner. 1
(4)[(3)] Violation of the terms or conditions of an order of protection issued under 2
KRS 456.060 after the person has been served or given notice of the order shall 3
constitute contempt of court and may constitute a criminal offense pursuant to KRS 4
456.180 if the offender is an adult or a public offense under KRS 600.020(51) if the 5
offender is a juvenile. Once a juvenile action or contempt proceeding has been 6
initiated, the other shall not be undertaken regardless of the outcome of the original 7
proceeding. 8
(5)[(4)] Nothing in subsection (4)[(3)] of this section shall preclude the 9
Commonwealth from proceeding, or the petitioner from pursuing charges, against 10
the minor respondent for offenses other than a violation of an order of protection. 11
Proceedings against a minor responden t for offenses other than a violation of an 12
order of protection shall proceed: 13
(a) In the juvenile session of District Court; and 14
(b) In accordance with the procedural and statutory provisions established for the 15
juvenile session of District Court. 16