AN ACT relating to custody.

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AN ACT relating to custody. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 403.270 is amended to read as follows: 3
(1) (a) As used in this chapter and KRS 405.020, unless the context requires 4
otherwise, "de facto custodian" means a person who has been shown by clear 5
and convincing evidence to have been the primary caregive r for, and financial 6
supporter of, a child who within the last two (2) years has resided with the 7
person for an aggregate period of six (6) months or more if the child is under 8
three (3) years of age and for an aggregate period of one (1) year or more if 9
the child is three (3) years of age or older or has been placed by the 10
Department for Community Based Services. Any period of time after a legal 11
proceeding has been commenced by a parent seeking to regain custody of the 12
child shall not be included in determ ining whether the child has resided with 13
the person for the required minimum period. 14
(b) A person shall not be a de facto custodian until a court determines by clear 15
and convincing evidence that the person meets the definition of de facto 16
custodian establi shed in paragraph (a) of this subsection. Once a court 17
determines that a person meets the definition of de facto custodian, the court 18
shall give the person the same standing in custody matters that is given to 19
each parent under this section and KRS 403.280 , 403.340, 403.350, 403.822, 20
and 405.020. 21
(2) The court shall determine custody in accordance with the best interests of the child 22
and equal consideration shall be given to each parent and to any de facto custodian. 23
[Subject to KRS 403.315, there shall be a presumption, rebuttable by a 24
preponderance of evidence, that joint custody and equally shared parenting time is 25
in the best interest of the child. If a deviation from equal parenting time is 26
warranted, ]The court shall construct a parenting time schedule which [maximizes 27
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the time each parent or de facto custodian has with the child and ] is consistent with 1
ensuring the child's welfare. The court shall consider all relevant factors including: 2
(a) The wishes of the child's parent or parents, and any de facto custodian, as to 3
his or her custody; 4
(b) The wishes of the child as to his or her custodian, with due consideration 5
given to the influence a parent or de facto custodian may have over the child' s 6
wishes; 7
(c) The interaction and interrelationship of the child with his or her parent or 8
parents, his or her siblings, and any other person who may significantly affect 9
the child's best interests; 10
(d) The motivation of the adults participating in the custody proceeding; 11
(e) The child's adjustment and continuing proximity to his or her home, school, 12
and community; 13
(f) The mental and physical health of all individuals involved; 14
(g) A finding by the court that domestic violence and abuse, as defined in KRS 15
403.720, has been committed by one (1) of the parties against a child of the 16
parties or against another party. The court shall determine the extent to which 17
the domestic violence and abuse has affected the child and the child's 18
relationship to each party, w ith due consideration given to efforts made by a 19
party toward the completion of any domestic violence treatment, counseling, 20
or program; 21
(h) The extent to which the child has been cared for, nurtured, and supported by 22
any de facto custodian; 23
(i) The intent of the parent or parents in placing the child with a de facto 24
custodian; 25
(j) The circumstances under which the child was placed or allowed to remain in 26
the custody of a de facto custodian, including whether the parent now seeking 27
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custody was previously pr evented from doing so as a result of domestic 1
violence and abuse as defined in KRS 403.720 and whether the child was 2
placed with a de facto custodian to allow the parent now seeking custody to 3
seek employment, work, or attend school; and 4
(k) The likelihood a party will allow the child frequent, meaningful, and 5
continuing contact with the other parent or de facto custodian, except that the 6
court shall not consider this likelihood if there is a finding that the other 7
parent or de facto custodian engaged in do mestic violence and abuse, as 8
defined in KRS 403.720, against the party or a child and that a continuing 9
relationship with the other parent will endanger the health or safety of either 10
that party or the child. 11
(3) The abandonment of the family residence by a custodial party shall not be 12
considered where that[said] party was physically harmed or was seriously 13
threatened with physical harm by his or her spouse, when such harm or threat of 14
harm was causally related to the abandonment. 15
(4) If the court grants custody to a de facto custodian, the de facto custodian shall have 16
legal custody under the laws of the Commonwealth. 17
Section 2. KRS 403.280 is amended to read as follows: 18
(1) A party to a custody proceeding may move for a temporary custody order. The 19
motion must be supported by an affidavit as provided in KRS 403.350. The court 20
may award temporary custody under the standards of KRS 403.270 after a hearing, 21
or, if there is no objection, solely on the basis of the affidavits . If the parents or a de 22
facto custodian joined under subsection (8)[(9)] of this section present a temporary 23
custody agreement and mutually agreed plan for parenting time, and the court 24
confirms that the agreement adequately provides for the welfare of th e child, the 25
agreement shall become the temporary custody order of the court. 26
(2) [Subject to KRS 403.315, in making an order for temporary custody, there shall be 27
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a presumption, rebuttable by preponderance of evidence, that it is in the best 1
interest of t he child for the parents or a de facto custodian joined under subsection 2
(9) of this section to have temporary joint custody and share equally in parenting 3
time. 4
(3) If a deviation from equal parenting time is warranted, ] The court shall construct a 5
parenting time schedule which [maximizes the time each parent or de facto 6
custodian joined under subsection (9) of this section has with the child and ] is 7
consistent with ensuring the child's welfare. 8
(3)[(4)] Each temporary custody order shall include specific findings of fact and 9
conclusions of law, except when the court confirms the agreement of the parties. 10
(4)[(5)] Any temporary custody order shall address the circumstance in which 11
physical possession of the child will be exchanged. 12
(5)[(6)] Modification of a temporary custody order may be sought when there is a 13
material and substantial change in the circumstances of the parents, de facto 14
custodian, or child. 15
(6)[(7)] If a proceeding for dissolution of marriage or legal separation is dismissed, 16
any temporary custody order is vacated unless a parent or the child's custodian 17
moves that the proceeding continue as a custody proceeding and the court finds, 18
after a hearing, that the circumstances of the parents and the best interests of the 19
child require that a custody decree be issued. 20
(7)[(8)] If a custody proceeding commenced in the absence of a petition for 21
dissolution of marriage or legal separation under KRS 403.822(1)(a) or (b) is 22
dismissed, any temporary custody order is vacated. 23
(8)[(9)] If a court determine s by clear and convincing evidence that a person is a de 24
facto custodian, the court shall join that person in the action, as a party needed for 25
just adjudication under Rule 19 of the Kentucky Rules of Civil Procedure. 26
Section 3. KRS 403.315 is amended to read as follows: 27
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When determining or modifying a custody order pursuant to KRS 403.270, 403.280, 1
403.340, or 403.740, the court shall consider the safety and well -being of the parties and 2
of the children. [If a domestic v iolence order is being or has been entered against a party 3
by another party or on behalf of a child at issue in the custody hearing, the presumption 4
that joint custody and equally shared parenting time is in the best interest of the child 5
shall not apply a s to the party against whom the domestic violence order is being or has 6
been entered. ]The court shall weigh all factors set out in KRS 403.270(2) in determining 7
the best interest of the child. 8
Section 4. KRS 403.340 is amended to read as follows: 9
(1) As used in this section, "custody" means sole or joint custody, whether ordered by a 10
court or agreed to by the parties. 11
(2) No motion to modify a custody decree shall be made earlier than two (2) years after 12
its date, unless the court permits it to be made on the basis of affidavits that there is 13
reason to believe that: 14
(a) The child's present environment may endanger seriously his or her physical, 15
mental, moral, or emotional health; or 16
(b) The custodian appointed under the prior decree has placed the child with a de 17
facto custodian. 18
(3) If a court of this state has jurisdiction pursuant to the Uniform Child Custody 19
Jurisdiction Act, the court shall not modify a prior custody decree unless after 20
hearing it finds, upon the basis of facts that have arisen since the prior decree or that 21
were unknown to the court at the time of entry of the prior decree, that a change has 22
occurred in the circumstances of the child or his or her custodian, and that the 23
modification is necessary to serve the best interests of the child. When determining 24
if a change has occurred and whether a modification of custody is in the best 25
interests of the child, the court shall consider the following: 26
(a) Whether the custodian agrees to the modification; 27
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(b) Whether the child has been integrated into the family of the petitioner with 1
consent of the custodian; 2
(c) The factors set forth in KRS 403.270(2) to determi ne the best interests of the 3
child; 4
(d) Whether the child's present environment endangers seriously his or her 5
physical, mental, moral, or emotional health; 6
(e) Whether the harm likely to be caused by a change of environment is 7
outweighed by its advantages to him or her; and 8
(f) Whether the custodian has placed the child with a de facto custodian. 9
(4) In determining whether a child's present environment may endanger seriously his or 10
her physical, mental, moral, or emotional health, the court shall consider all 11
relevant factors, including[,] but not limited to: 12
(a) The interaction and interrelationship of the child with his or her parent or 13
parents, [his ]de facto custodian, [his ]siblings, and any other person who may 14
significantly affect the child's best interests; 15
(b) The mental and physical health of all individuals involved; 16
(c) Repeated or substantial failure, without good cause as specified in KRS 17
403.240, of either parent to observe visitation, child support, or other 18
provisions of the decree which affect the child, except that modification of 19
custody orders shall not be made solely on the basis of failure to comply with 20
visitation or child support provisions, or on the basis of which parent is more 21
likely to allow visitation or pay child support; 22
(d) If domestic violence and abuse, as defined in KRS 403.720, is found by the 23
court to exist, the extent to which the domestic violence and abuse has 24
affected the child and the child's relationship to both parents. 25
(5) [Subject to KRS 403.315, if the court orders a modification of a child custody 26
decree, there shall be a presumption, rebuttable by a preponderance of evidence, 27
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that it is in the best interest of the chi ld for the parents to have joint custody and 1
share equally in parenting time. If a deviation from equal parenting time is 2
warranted, ]The court shall construct a parenting time schedule which [maximizes 3
the time each parent or de facto custodian has with t he child and ]is consistent with 4
ensuring the child's welfare. 5
(6) Attorney fees and costs shall be assessed against a party seeking modification if the 6
court finds that the modification action is vexatious and constitutes harassment. 7
Section 5. KRS 403.320 is amended to read as follows: 8
(1) A parent not granted custody of the child [ and not awarded shared parenting time 9
under the presumption specified in KRS 403.270(2), 403.280(2), or 403.340(5)] is 10
entitled to reasonabl e visitation rights unless the court finds, after a hearing, that 11
visitation would endanger seriously the child's physical, mental, moral, or 12
emotional health. Upon request of either party, the court shall issue orders which 13
are specific as to the frequenc y, timing, duration, conditions, and method of 14
scheduling visitation and which reflect the development age of the child. 15
(2) If domestic violence and abuse, as defined in KRS 403.720, has been alleged, the 16
court shall, after a hearing, determine the visita tion arrangement, if any, which 17
would not endanger seriously the child's or the custodial parent's physical, mental, 18
or emotional health. 19
(3) The court may modify an order granting or denying visitation rights whenever 20
modification would serve the best int erests of the child; but the court shall not 21
restrict a parent's visitation rights unless it finds that the visitation would endanger 22
seriously the child's physical, mental, moral, or emotional health. 23
(4) (a) Under circumstances where the court finds, by clear and convincing evidence, 24
it is in the best interest of the child, any relative, by blood or affinity, that was 25
previously granted temporary custody pursuant to [the provisions of ] KRS 26
620.090 may be granted reasonable noncustodial parental visitation rights by 27
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a Circuit Court or Family Court as an intervenor or by original action. 1
(b) Once the relative has been granted visitation pursuant to this subsection, those 2
rights shall not be adversely affected by the termination of custodial or 3
parental rights of an individual who has permanent custody of the child unless 4
the court determines that termination of the visitation rights is[are] in the best 5
interest[interests] of the child. 6
(c) The action shall be brought in the county in which the temporary or 7
permanent custody order was entered or where the child resides. 8