Frances v. Frances involves relocation issues arising prior to the entry of a final custody decree. These were also the facts in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003). The Kentucky Supreme Court now recognizes that the effect of relocation must be viewed in light of whether it occurs pre- or post-decree. In making a final custody decree, the trial court must apply a best interest standard and there is no rule giving a preference on relocation to a primary residential parent.
Pennington v. Marcum concerns post-decree relocation of a child. Justice Noble gives us an excellent primer on modification of custody as opposed to modification of parenting time. Fenwick required a parent opposing relocation to move for a change of custody when the father in Fenwick really only wanted to become the primary residential parent, which is merely a modification of timesharing under joint custody. Pennington v. Marcum holds that a motion for change of custody is not required and a motion to modify visitation/timesharing under KRS 402.320 is sufficient. From the Opinion:
The party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. A residential parent who wishes only to change the visitation/timesharing due to his relocating with the child may bring the motion to modify visitation/timesharing under KRS 403.320. If that parent believes that the relocation will make a joint custody arrangement unworkable, then the motion should be made for a change of custody from joint to sole under KRS 403.340.
Likewise, when one parent indicates an interest in relocating with the child, the parent opposed need not wait, but could file his own motion. A parent who has equal or nearly equal visitation/timesharing and who wants to prevent a child’s relocation with the other parent, but does not want to change custody from joint to sole, could bring a motion for a change of visitation/timesharing under KRS 403.320. This could result in a designation of that parent as primary residential parent if the child is not allowed to relocate because it is not in his best interest to do so. If that same parent wants to change custody from joint to sole custody to him, he must being the motion for a change of custody and proceed under KRS 403.340.
Both parents may need to bring motions if their wishes differ. For example, if the residential mother makes a motion to modify visitation/timesharing to allow her to relocate with the child, the father may need to make a motion for modification of visitation/timesharing to name him as the residential parent, which would prevent relocation of the child. Or, the father could make a motion to be named sole custodian, and if he could meet his statutory burden, there would be a change of custody which would also defeat the relocation. If neither party wishes to change the nature of the custody, and the court determines that it is in the best interest of the child to relocate with the mother, the father’s visitation/timesharing would be modified to an accommodation as reasonable as possible given the distance of the relocation and the means of the parties.
To the extent this Court’s prior decision in Fenwick and its progeny is inconsistent with this Opinion, it is overruled.
It appears we could sing “Ding Dong Fenwick’s Dead!” but both Opinions talk about overruling Fenwick to the extent it is inconsistent. It will take some digging to determine what part of Fenwick is still alive. Nonetheless, it is a case we no longer have to worry about.
Justice Noble was joined by Justices Abramson, Schroder, and Scott. Justices Cunningham and Venters agree with most of the majority Opinion, but dissent because the trial court gave insufficient analysis to the effect of relocation on the child, a deficiency in large part due to the Court’s failure to provide guidance to trial judges. Factors a trial court should consider include: (1) the age of the child; (2) the purpose of the move; (3) the distance of the move; (4) the worthiness of the move for the child when balanced with any negative effects; (5) the improvement of the child’s standard of living; (6) the physical hardship of travel for the child on visitation with the non-custodial parent; (7) the presence or absence of extended family for the child at the new location versus the existing location; (8) the motivation of the non-custodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?); (9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child; (10) the possibility and plausibility of the non-custodial parent following the child; and (11) the number of times the custodial parent has moved.
Justice Venters' separate dissent espoused the belief that the court should have adopted or promoted a requirement that joint custodians discuss a proposed relocation in advance.
It's a rare day when one can agree with both majority opinions and both dissenting opinions. Our high court tackled the thorny issue of relocation very well.
Full digests of both cases to follow.