Crossfield v. Crossfield, 155 SW3d 743 (Ky.App., 2005)

Crossfield v. Crossfield, 155 SW3d 743 (Ky.App., 2005)
Change of residential parent within two years of custody decree
requires supporting affidavits and finding of endangerment or
placement with de facto custodian.

John and Keni had three children during their marriage, a boy and two girls. They separated in February 2002, and later filed a joint petition for dissolution, with an Agreement awarding joint custody and Keni designated primary residential custodian. This was later amended with John being designated the primary custodian. Less than nine months later, Keni filed a motion to modify the time-sharing schedule. No affidavits were attached to the motion. During the hearing, Keni acknowledged that she wanted the decree modified so that she would become the primary residential custodian.

The DRC conducted a hearing and recommended that "the best interest of the children would be served by returning the children to Mom's care," that the time-sharing arrangement be reversed, and that John pay child support to Keni.

John appealed to the Kentucky Court of Appeals. Keni argued her motion was merely one to modify visitation. Held - reversed - the modification altered the primary residential custodian, and is thereby subject to the statutes relating to modification under Fenwick v. Fenwick.

Note: this Court places emphasis upon the term "primary residential custodian." While not defined by statute, it is generally used to refer to the party with whom the child or children will primarily reside. The other parent is awarded visitation. Returning the children to Keni's care would result in Keni assuming the day to day decisions concerning the children, she would be responsible for their normal care and control, the parenting time would be reversed, as would the child support obligation. "Under these circumstances the modification would be of custody, not visitation."