Child Custody

There are several types of custody that are commonly decided in Kentucky’s courts.

First, custody can be “physical” or “legal.” Physical custody simply refers to the parent who has physical care and control of the child on a day-to-day basis, which includes daily, hands-on care, such as bathing or feeding a child. Legal custody, on the other hand, is the right to make important decisions on behalf of a child regarding matters like education, culture, religion and health.

Second, custody can be temporary or permanent. As a preliminary matter, temporary custody is usually awarded to one parent during paternity or divorce proceedings, with the understanding that eventually there will be a contested hearing (similar to a trial) in front of a judge, with witness testimony and other evidence, after which the judge may decide to give permanent custody to one or both parties.

Finally, custody in Kentucky can be sole or joint. This distinction most affects legal custody. In a joint legal custodial situation, both parents make decisions together on behalf of their child. When a child’s parents have joint legal custody, they often agree to designate the parent with whom the child spends more time as the “primary residential parent” or “primary residential custodian.” This is just a way of saying that the parents have equal decision-making rights, but the child spends more time at one residence than the other. This designation is not required by Kentucky law.

The Kentucky appellate courts have established a “best interests” standard to decide what the custodial arrangement should be.

If the matter goes to a contested hearing, both parents will have the opportunity to call witnesses, present other evidence and testify. But the court also has some autonomy to gather its own evidence. The court may decide to call the child as a witness, and may ask the child where he or she would prefer to live. Depending on the child’s age or emotional state, this conversation may occur in open court or privately, in the judge’s chambers. The court may or may not elect to appoint a person or agency of its own choosing as a “friend of the court” to investigate the child’s situation and make recommendations to the judge.