Modifying Child Custody: From Joint Custody to Sole Custody

Joint custody is based on two simple presumptions. First, that the parents are able to communicate to resolve any issues involving their child. And, second, that it is in the best interest of the child that both parents be extensively involved in the decision making for the upbringing of the child. However, when communication breaks down and the safety of the child is called into question, it might be time to modify any previous joint custody orders or agreements.

What Kentucky Laws Govern Modification of Child Custody?

There are two different laws you must follow when you decide to modify child custody. The first law (actually two laws) applies when you are modifying child custody within the first two years of an original custody order. If a modification to child custody is attempted less than two years after an entry of custody decree, then the party seeking modification must submit two affidavits demonstrating:

  1. the child's present environment may seriously endanger the child's physical, mental, moral, or emotional health; or the custodian appointed under a prior decree has placed the child with a de facto custodian; (see KRS 403.340) AND
  2. facts supporting the requested modification. (see KRS 403.350)

The second law that must be followed applies when modification of child custody is sought more than two years after the original decree of custody. If more than two years has passed since the original custody decree than the party seeking modification must show at the hearing that a change has occurred in the circumstances of the child or their custodian AND that modification is necessary to serve he best interest of the child.

Both laws require a hearing that results in the court finding upon the facts that a change has occurred in the circumstances of the child and that modification is necessary to serve the best interest of the child. Simply put, if you are seeking to modify a child custody order within two years of an original custody order, then both KRS 403.340 AND KRS 403.350 must be followed (hence the two affidavits). However, if you are seeking to modify a child custody order after two years have elapsed from the original custody order, then only KRS 403.340 applies (hence one affidavit).

What Does the Court Consider When Determining if Modification is Appropriate?

The court considers a long list of factors found that include:

  1. Whether the custodian agrees to the modification;
  2. Whether the child has been integrated into the family of the Petitioner with consent of the custodian;
  3. The factors set forth in KRS 403.270 to determine the best interest of the child;
  4. Whether the child's present environment seriously endangers their physical, mental, moral, or emotional health;
  5. Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him/her; and
  6. Whether the custodian has placed the child with a de facto custodian.

These factors have been argued in court successfully showing that if the inability of the parents to cooperate is linked with endangerment of the child's physical, mental, moral or emotional health, then joint custody may be successfully modified. The Kentucky Supreme Court defined cooperation as "rational participation" in decisions affecting the child's upbringing.

What Factors are Considered When Determining the Best Interest of the Child?

The following factors are considered under KRS 403.270:

  1. The wishes of the child's parent or parents, and any de facto custodian, as to his or her custody;
  2. The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child's wishes;
  3. The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
  4. The motivation of the adults participating in the custody proceeding;
  5. The child's adjustment and continuing proximity to his or her home, school,
    and community;
  6. The mental and physical health of all individuals involved;
  7. A finding by the court that domestic violence and abuse has been committed by one of the parties against a child of the parties or against another party;
  8. The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
  9. The intent of the parent or parents in placing the child with a de facto custodian;
  10. The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic
    violence and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school; and
  11. The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian, except that the court shall not consider this likelihood if there is a finding that the other parent or de facto custodian engaged in domestic violence and abuse against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.

While the list of factors considered are long, you should assume that the court will consider all facts and evidence that support an argument of what is in the best interest of the child.

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