This field is changing rapidly in the Commonwealth of Kentucky. Previously in divorces, sole custody for the mother was the norm, with the father having visitation every other weekend. The practice now leans towards joint custody with the child having shared time with both parents. However, there are situations where joint custody is not in the best interest of the child.
Goldberg Simpson is available to assist you in demonstrating to the court your children’s needs and how these needs will best be met.
The law in this area will continue to evolve, depending upon the various sociological theories presented by experts in the field. Our attorneys stay abreast of the various theories and can assist you in understanding the current state of the law and determining what options are best for your children and for you.
Child Custody in Kentucky
Where are your children going to spend the majority of their time? How are important decisions going to be made about your child’s education, health care, or religious upbringing? What does it mean to have legal or physical custody? And what is in the best interest of your child?
The answers to these questions could have critical implications for the well-being of your child or children. In fact, custody and parenting issues are the primary focus of most parents who seek a family law representation. The attorneys at Goldberg Simpson recognize this. Our zeal and creativity can improve difficult situations for all parties, and most importantly, for our clients’ children.
Under Kentucky law, custody matters are determined by the children’s “best interests.” Because the definition is not always clear or precise, and because physical and legal custody are of paramount importance, it is essential to bring such matters to an experienced professional. At times, it may even be in the best interest of the child to have an attorney engaged to advocate on his behalf, or to have input solicited from a custodial evaluator or therapist.
To lawyers and family court judges, custody means “legal custody”. It is defined as the ability to make major life decisions for the child or children. The issues impacted by legal custody include (but aren’t limited to) academic decisions, religious upbringing, elective medical care and health insurance. In most situations, parents share joint legal custody; however, it is not appropriate in all cases. For example, in cases of domestic violence, mental illness or high conflict situations, there is a need for sole legal custody to minimize the emotional and other trauma for the family. Goldberg Simpson lawyers recognize this and are prepared to help clients through the process. The goal is a personalized schedule tailored to a family’s unique needs.
Goldberg Simpson lawyers strive to gain results through mediation or alternative dispute resolution rather than standing before a family court judge. However, should a case need to be litigated, your Goldberg Simpson attorney will represent your interests vigorously.
Child Support in Kentucky
Before a child turns 18, and in certain circumstances beyond age 18, both parents are obligated by statute to support him or her. Neither parent can waive the child support obligation set forth in the Kentucky Child Support Guidelines.
Child support orders in Kentucky are based on the income of the parent and amount of time each parent spend with the children. Even after an agreement is reached, post-divorce a chance in circumstances can support a petition for the modification of child support orders. These include disability, reduced income, or an extraordinary circumstance.
Each county in the state of Kentucky has a local child support department that is empowered to enforce child support orders or initiate support claims against delinquent parents in connection with their court ordered child support obligations.
In Kentucky, the amount of child support is typically governed by a formula in the law. In 1990, the Legislature enacted the Child Support Guidelines, which created a rebuttable presumption that the Guideline amount is the appropriate amount of support in determining child support. The Guidelines are based on the Income Shares Model under the theory that a child should receive as child support the same proportion of parental income that the child would have received had the parents lived together as an intact, two-parent family. The guidelines table setting forth the applicable child support obligation is based on the combined adjusted parental gross income of both parents. In short, each parent pays his or her fair share.
The Family Court Judge has ability to deviate from the guidelines “where their application would be unjust or inappropriate.” Some of the reasons to not use the Guidelines include a balanced or equal custody schedule, special needs of the child, or in high income situations. In these cases, the Court is required to state the reasons why the Guidelines were not used with reference to Child Support.
Although child support issues can be purely mathematical, there are also instances where they can be complex. For example, in high income situation, the Court focuses on the needs of the child rather than the income of the parents. The Court seeks to balance what the needs are under all the facts and circumstances with the fact that it does not want child support to be a windfall to the receiving parents. In such situations, there are techniques that can be used such as education trusts to make certain that the funds are not misused.
Additionally, there are complexities when one or both parents are self-employed. In self-employment cases, the Court will look more closely to see the actual income rather than the income that is reported on a tax return. The court will also look at bonus income, debt relief, state benefits or even inheritances. In these cases, it is important to have a lawyer who knows the cases in order to have the proper child support set.
Paternity in Kentucky Family law
As paternity can drive fundamental decisions in a divorce, from support to custody to visitation, any uncertainty about a child’s paternity should be challenged. Child support obligations are not removed in situations in which the parties were never married.
In Kentucky either the mother or father can file a Petition to Establish Paternity although the Court can still deny a request to challenge paternity. Your Kentucky Paternity Lawyer at Goldberg Simpson can help you with your paternity issues including a challenge to the validity of the paternity test results.
Paternity can be established with certainty through DNA testing. Paternity is then established by a specific written document called an acknowledgment, which you must file with the father’s birth registrar.
Certain statutory presumptions of paternity govern the determination in certain situations. There is a presumption of paternity when a father has taken a child into his home and has held the child out as his own for a period of time. A presumption of paternity also arises in KY when a father signs a voluntary declaration of paternity. Still, if litigation is necessary, Goldberg Simpson attorneys are prepared to succeed in court.
Moreover, on June 5, the Kentucky Court of Appeals addressed the issue of father’s rights once again. In Ison .v Ison (http://opinions.kycourts.net/coa/2012-CA-001271.pdf), the Court was tasked with struggling with the issue of how to treat biological fathers versus nonbiological fathers. We refer you our our comments about the case in a recent blog post we dedicated to this new paternity case in Kentucky.
Grandparents’ Rights and Visitation
Kentucky Family Law Court will recognize custody and visitation rights of grandparents, although such rights are not guaranteed. Yet a Court may grant reasonable visitation rights to a grandparent if the grandparent can prove by clear and convincing evidence that visitation is in the child’s best interests – particularly if grandparents were involved in the support and care of their grandchild or in situations of neglect or abuse of the grandchild at the hands of the parents.
Unlike many other states responding to a Supreme Court ruling against grandparents’ rights, Kentucky has not declared grandparent visitation rights unconstitutional. Rather, the Kentucky Court of Appeals heightened the level of scrutiny courts should give to these types of cases by reiterating that fit parents are presumed to make decisions that are in the best interests of their child and that, in order to overcome this presumption, the grandparent must meet their evidentiary burden, which is the “clear and convincing” standard, and clearly establish that visitation is in the child’s best interests.
Grandparent visitation cases can often be very emotionally charged, and thus, difficult to resolve by mediation. Therefore, these cases almost always go to a hearing and are left for the judge to decide. As the judge cannot know all the nuances of family dynamics and is ruling based only on documented evidence before him or her, it is recommended that a person seeking to gain or suppress grandparent visitation obtain legal counsel.